PURCHASE AND SALE AGREEMENT BETWEEN AS SELLER AND HINES REIT 2200 ROSS AVENUE LP, AS PURCHASER DATED OCTOBER 15, 2007
BETWEEN
2200
XXXX, X.X.,
AS
SELLER
AND
XXXXX
REIT 0000 XXXX XXXXXX LP,
AS
PURCHASER
DATED
OCTOBER 15, 2007
TABLE
OF CONTENTS
Page
No.
ARTICLE
1
BASIC
INFORMATION
1.1 Certain
Basic Terms
1.2 Closing
Costs
1.3 Notice
Addresses:
ARTICLE
2
PROPERTY
2.1 Property
ARTICLE
3
XXXXXXX
MONEY
3.1 Deposit
and Investment of Xxxxxxx Money
3.2 Independent
Consideration
3.3 Form;
Failure to Deposit
3.4 Disposition
of Xxxxxxx Money
ARTICLE
4
DUE
DILIGENCE
4.1 Due
Diligence Materials To Be Delivered
4.2 Due
Diligence Materials To Be Made Available
4.3 Acknowledgment
by Purchaser; Diligence Website
4.4 Physical
Due Diligence
4.5 Due
Diligence/Termination Right
4.6 Return
of Documents and Reports
4.7 Service
Contracts
4.8 Proprietary
Information; Confidentiality
4.9 No
Representation or Warranty by Seller
4.10 Purchaser’s
Responsibilities
4.11 Purchaser’s
Agreement to Indemnify
ARTICLE
5
TITLE
AND
SURVEY
5.1 Title
Commitment
5.2 Updated
Survey
5.3 Title
Review
5.4 Delivery
of Title Policy at Closing
ARTICLE
6
OPERATIONS
AND RISK OF LOSS; TENANT ESTOPPELS; SKYBRIDGE ESTOPPELS
6.1 Ongoing
Operations
6.2 Damage
6.3 Condemnation
6.4 Tenant
Estoppels
6.5 Skybridge
Estoppels
ARTICLE
7
CLOSING
7.1 Closing
7.2 Conditions
to Parties’ Obligation to Close.
7.3 Seller’s
Deliveries in Escrow
7.4 Purchaser’s
Deliveries in Escrow
7.5 Closing
Statements
7.6 Purchase
Price
7.7 Possession
7.8 Delivery
of Books and Records
7.9 Notice
to Tenants
ARTICLE
8
PRORATIONS,
DEPOSITS, COMMISSIONS
8.1 Prorations
8.2 Leasing
Costs
8.3 Closing
Costs
8.4 Final
Adjustment After Closing
8.5 Tenant
Deposits; Letters of Credit
8.6 Commissions
8.7 Xxxxx
Lord Electrical Charge Dispute
ARTICLE
9
REPRESENTATIONS
AND WARRANTIES
9.1 Seller’s
Representations and Warranties
9.2 Purchaser’s
Representations and Warranties
9.3 Knowledge
Defined
9.4 Survival
of Representations and Warranties
ARTICLE
10
DEFAULT
AND REMEDIES
10.1 Seller’s
Remedies
10.2 Purchaser’s
Remedies
10.3 Attorneys’
Fees
10.4 Other
Expenses
ARTICLE
11
DISCLAIMERS
AND RELEASE
11.1 Disclaimers
By Seller
11.2 Sale
“As Is, Where Is”
11.3 Seller
Released from Liability
11.4 “Hazardous
Materials” Defined
11.5 Survival
ARTICLE
12
MISCELLANEOUS
12.1 Parties
Bound; Assignment
12.2 Headings
12.3 Invalidity
and Waiver
12.4 Governing
Law
12.5 Survival
12.6 Entirety
and Amendments
12.7 Time
12.8 Confidentiality
12.9 No
Electronic Transactions
12.10 Notices
12.11 Construction
12.12 Calculation
of Time Periods; Business Day
12.13 Execution
in Counterparts
12.14 No
Recordation
12.15 Further
Assurances
12.16 Discharge
of Obligations
12.17 No
Third Party Beneficiary
12.18 Reporting
Person
12.19 Mandatory
Arbitration
12.20 Cooperation
with Purchaser’s Auditors and SEC Filing Requirements
12.21 Post-Closing
Escrow
12.22 Xxxxx
Lord Escrow
LIST
OF DEFINED TERMS
Page
No.
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AAAH-1
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Additional
Deposit7
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Additional
Property Information13
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Agreement6
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Assignment22
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Broker7
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Brokerage
Agreements31
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Business
Day38
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Cap32
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Casualty
Notice18
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CERCLA35
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Closing21
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Closing
Condition22
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Closing
Date8
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Deed22
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Diligence
Costs33
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Diligence
URL/Password13
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Diligence
Website13
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Dispute
Related Documents10
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Due
Diligence Termination Notice15
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Xxxxxxx
Money7
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Effective
Date7
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Environmental
Laws30
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Escrow
Agent7
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Estoppel
Deadline19
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Existing
Leases29
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Hazardous
Materials36
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Improvements9
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Independent
Consideration11
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Initiating
PartyH-1
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Inspection
Period8
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Intangible
Personal Property10
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Key
Tenants8
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Land9
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Lease
Files13
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Leases10
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Leasing
Costs27
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License
Agreements10
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License
Assignments24
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Lock
Lord Escrow40
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Xxxxx
Lord27
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Xxxxx
Lord Electrical Charge Dispute29
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Xxxxx
Lord Escrow Agreement40
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Xxxxx
Lord Termination Fee27
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Master
Lease23
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Master
Lease Escrow6
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Master
Lease Escrow Agreement6
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Master
Lease Escrow Deposit6
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Material
Damage19
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Materially
Damaged19
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Non-Refundable
Deposit7
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OFAC31
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Permitted
Exceptions17
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Permitted
Outside Parties15
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Post
Closing Escrow39
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Post-Closing
Escrow Agreement39
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Property9
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Property
Documents14
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Property
Information11
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Property
Information Delivery Date7
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Purchase
Price6
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Purchaser6
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Purchaser’s
Closing Date Certificate24
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Real
Property9
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Rent
Roll11
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Report15
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Reports15
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Required
Estoppel Percentage20
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Seller6
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Seller
Estoppel20
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Seller
Liens17
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Seller’s
Closing Date Certificate23
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Seller’s
Representatives32
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Service
Contracts10
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Skybridge
Estoppels20
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Survey17
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Survival
Period32
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Tangible
Personal Property10
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Taxes26
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Tenant
Estoppel19
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Tenant
Receivables26
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Title
and Survey Review Period7
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Title
Commitment17
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Title
Commitment Delivery Date7
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Title
Company7
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Title
Policy17
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to
Seller’s knowledge32
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to
the best of Seller’s knowledge32
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Unbilled
Tenant Receivables26
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Uncollected
Delinquent Tenant Receivables26
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[Chase
Tower, Dallas, Texas]
This
Purchase and Sale Agreement (this “Agreement”) is made
and entered into by and between Purchaser and Seller.
RECITALS
A. Defined
terms are indicated by initial capital letters. Defined terms shall
have the meaning set forth herein, whether or not such terms are used before
or
after the definitions are set forth.
B. Purchaser
desires to purchase the Property and Seller desires to sell the Property, all
upon the terms and conditions set forth in this Agreement.
NOW,
THEREFORE, in consideration of the mutual terms, provisions, covenants and
agreements set forth herein, as well as the sums to be paid by Purchaser to
Seller, and for other good and valuable consideration, the receipt and
sufficiency of which are acknowledged, Purchaser and Seller agree as
follows:
ARTICLE
1
BASIC
INFORMATION
1.1 Certain
Basic Terms. The following defined terms shall have the
meanings set forth below:
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1.1.1
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Seller:
|
2200
Xxxx, X.X., a Texas limited partnership
|
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1.1.2
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Purchaser:
|
Xxxxx
REIT 0000 Xxxx Xxxxxx LP, a Delaware limited
partnership
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1.1.3
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Purchase
Price:
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$289,600,000.00
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Master
Lease:
|
At
Closing, Seller shall deposit the amount of $1,500,000, plus the
amount of
the free/abated rent credit specified on Exhibit I as provided in
Section 8.2 (which amount
shall be deposited out of the Purchase Price) (such amount, together
with
any and all interest earned thereon from and after Closing, the
“Master Lease Escrow Deposit”) into such escrow account
as Purchaser shall direct by notice to Seller given on or before
the
Closing Date (the “Master Lease Escrow”) to provide a
source of funds for Seller’s payment of rent under the Master Lease (as
defined in Section 7.3.8),
and at Closing Seller, Purchaser and Escrow Agent shall enter into
an
escrow agreement (the “Master Lease Escrow Agreement”),
governing the disbursement of the Master Lease Escrow, the form of
which
agreement shall be agreed upon by Seller and Purchaser prior to the
expiration of the Inspection Period.
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1.1.4
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Xxxxxxx
Money:
|
The
sum of (i) $2,500,000.00, including interest thereon, to be deposited
in
accordance with Section 3.1 below
(the “Non-Refundable Deposit”) that shall be
non-refundable to Purchaser other than for a Seller default or for
any
termination by Purchaser pursuant to Sections 5.4, 6.2,
6.3,
6.4
or 7.2.3 and (ii) $5,000,000.00
(the
“Additional Deposit”; and together with the
Non-Refundable Deposit, the “Xxxxxxx Money”), including
interest thereon, to be deposited in accordance with Section 3.1 below.
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1.1.5
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Title
Company:
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Chicago
Title Insurance Company
0000
Xxxxx Xxxxx, Xxxxx 0000
Xxxxxx,
Xxxxx 00000
Attn.:
Xxxx X. Xxxxxxx
Telephone
number: (000) 000-0000
Facsimile
number: (000) 000-0000
E-mail:
Xxxx.Xxxxxxx@XXX.xxx
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1.1.6
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Escrow
Agent:
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Chicago
Title Insurance Company
0000
Xxxxx Xxxxx, Xxxxx 0000
Xxxxxx,
Xxxxx 00000
Attn.:
Xxxx X. Xxxxxxx
Telephone
number: (000) 000-0000
Facsimile
number: (000) 000-0000
E-mail:
Xxxx.Xxxxxxx@XXX.xxx
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1.1.7
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Broker:
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Xxxxxxxx
Xxxxxxxx Xxxxxx, X.X.
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1.1.8
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Effective
Date:
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October
15, 2007.
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1.1.9
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Property
Information Delivery Date:
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The
Effective Date.
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1.1.10
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Title
Commitment Delivery Date:
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The
Effective Date.
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1.1.11
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Title
and Survey Review Period:
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The
period ending ten (10) days after the later of (i) the Effective
Date, and (ii) Purchaser’s receipt of the initial Title Commitment
and the copy of Seller’s existing survey delivered to Purchaser under
Section 5.2, but in any event not
later than the expiration of the Inspection Period.
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1.1.12
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Inspection
Period:
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The
period beginning on September 19, 2007 (which is the date Purchaser
began
its due diligence with respect to the Property), and ending at 5:00
p.m.,
Dallas, Texas time on October 16, 2007.
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1.1.13
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Closing
Date:
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November 20,
2007, or such earlier date (but not before November 6, 2007) as Seller
may
designate upon not less than three (3) Business Day’s prior written notice
to Purchaser.
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1.1.14
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Key
Tenants:
|
(1) JPMorgan
Chase Bank, N.A.
(2) Deloitte
& Touche
(3)Xxxxx
Lord Xxxxxxx & Xxxxxxx LLP (f/k/a Xxxxx Liddell & Xxxx,
PLLC)
(4) Fulbright
& Xxxxxxxx
(5) Dallas
Petroleum Club
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1.2 Closing
Costs. Closing costs shall be allocated and paid as
follows:
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COST
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RESPONSIBLE
PARTY
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Title
Commitment required to be delivered pursuant to Section 5.1
|
Seller
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Premium
for standard form Title Policy required to be delivered pursuant
to
Section 5.4
|
Seller
|
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Premium
for any endorsements (other than endorsements required to cure Seller
Liens [as defined in Section 5.3] or any other matters which
Seller agrees to remove or cure prior to Closing) to the Title Policy
desired by Purchaser, any inspection fee charged by the Title Company,
tax
certificates, municipal and utility lien certificates, and any other
Title
Company charges
|
Purchaser
|
|
Cost
of the Survey delivered by Seller to Purchaser under Section 5.2
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Seller
|
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Cost
of any revisions, modifications or recertifications to the
Survey
|
Purchaser
|
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Costs
for UCC Searches
|
Purchaser
|
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Recording
Fees
|
Purchaser
|
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Any
escrow fee charged by Escrow Agent for holding the Xxxxxxx Money
or
conducting the Closing
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Purchaser
½
Seller
½
|
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Real
Estate Sales Commission to Broker
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Seller
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All
other closing costs, expenses, charges and fees
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The
party incurring the same
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1.3 Notice
Addresses:
|
Purchaser:Xxxxx
REIT 0000 Xxxx Xxxxxx LP
c/o
Hines Interests Limited Partnership
0000
Xxxx Xxx Xxxxxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxx 00000-0000
Attention:
Xxxxxxx X. Xxxxx
Facsimile:
(000) 000-0000
E-mail:
Xxxxxxx_Xxxxx@xxxxx.xxx
|
Copy
to:Xxxxx REIT 0000 Xxxx Xxxxxx LP
c/o
Hines Interests Limited Partnership
0000
Xxxx Xxx Xxxxxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxx 00000-0000
Attention:
Xxxxx X. Xxxxxxx
Facsimile:
(000) 000-0000
E-mail:
Xxxxx_Xxxxxxx@xxxxx.xxx
|
|
Copy
to:Xxxxx REIT 0000 Xxxx Xxxxxx LP
c/o
Hines Interests Limited Partnership
000
Xxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxx 00000-0000
Attention:
Xxxx X. Cover
Facsimile:
(000) 000-0000
E-mail:
Xxxx_Xxxxx@xxxxx.xxx
|
Copy
to:Xxxxx Xxxxx L.L.P.
0000
Xxxx Xxxxxx, Xxxxx 000
Xxxxxx,
Xxxxx 00000-0000
Attention:
Xxxx X. Xxxxxxx Xx.
Facsimile:
(000) 000-0000
E-mail:
xxxx.xxxxxxx@xxxxxxxxxx.xxx
|
|
Seller:2200
Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx,
Xxxxx 00000
Attention: Xxxxxxx
X. XxXxxx
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
E-mail:
xxxxxxx@xxxxxxxxxxxx.xxx
|
Copy
to:Xxxxxx & Xxxxxx L.L.P.
0000
Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx,
Xxxxx 00000
Attention:
Xxxxx Xxxxx
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
E-mail:
xxxxxx@xxxxx.xxx
|
ARTICLE
2
PROPERTY
2.1 Property. Subject
to the terms and conditions of this Agreement, Seller agrees to sell to
Purchaser, and Purchaser agrees to purchase from Seller, the following property
(collectively, the “Property”):
2.1.1 Real
Property. The land described in Exhibit A hereto (the
“Land”), together with (a) all improvements located
thereon, but expressly excluding improvements and structures owned by any tenant
or other third party (“Improvements”), (b) all right,
title and interest of Seller, if any, in and to the rights, benefits,
privileges, easements, tenements, hereditaments, and appurtenances thereon
or in
anywise appertaining thereto, and (c) all right, title, and interest of Seller,
if any, in and to all strips and gores and any land lying in the bed of any
street, road or alley, open or proposed, adjoining the Land (collectively,
the
“Real Property”).
2.1.2 Leases. All
of Seller’s right, title and interest in all leases of the Real Property (other
than License Agreements), including leases which may be made by Seller after
the
Effective Date and prior to Closing as permitted by this Agreement (the
“Leases”).
2.1.3 Tangible
Personal Property. All of Seller’s right, title and
interest in the equipment, machinery, furniture, furnishings, supplies,
marketing materials, brochures and other tangible personal property, if any,
owned by Seller and now or hereafter located in and used in connection with
the
operation, ownership or management of the Real Property, but specifically
excluding any items of personal property owned or leased by Seller’s property
manager or tenants at or on the Real Property and further excluding any items
of
personal property owned by third parties and leased to Seller (collectively,
the
“Tangible Personal Property”).
2.1.4 Intangible
Personal Property. All of Seller’s right, title and
interest, if any, in all intangible personal property related to the Real
Property and the Improvements, including, without limitation: all
trade names and trade marks associated with the Real Property and the
Improvements, including Seller’s rights and interests, if any, in the name of
the Real Property (subject to the rights of JPMorgan Chase Bank, N.A. to use
its
name); the plans and specifications and other architectural and engineering
drawings for the Improvements, if any (to the extent assignable); contract
rights related to the operation, ownership or management of the Real Property
that will remain in existence after Closing, including maintenance, service,
construction, supply and equipment rental contracts, if any, but not including
Leases or License Agreements (collectively, the “Service
Contracts”) (but only to the extent assignable and Seller’s
obligations thereunder are expressly assumed by Purchaser pursuant to this
Agreement); warranties (to the extent assignable); governmental permits,
approvals and licenses, if any (to the extent assignable); and telephone
exchange numbers (to the extent assignable (all of the items described in this
Section 2.1.4 collectively referred to
as the “Intangible Personal
Property”). Tangible Personal Property and Intangible
Personal Property shall not include (a) any appraisals or other economic
evaluations of, or projections with respect to, all or any portion of the
Property, including, without limitation, budgets prepared by or on behalf of
Seller or any affiliate of Seller, (b) any documents, materials or information
which are subject to attorney/client, work product or similar privilege, which
constitute attorney communications with respect to the Property and/or Seller
(except Dispute Related Documents, as defined below) or which are subject to
a
confidentiality agreement, and (c) any trade name, xxxx or other identifying
material that includes the name “Stream,” “Stream Realty,” “Stream Realty
Partners” or any derivative thereof. As used herein,
“Dispute Related Documents” means any documents,
materials or information relating to existing disputes with, or overtly
threatened disputes of which Seller has received written notice from, tenants
under Leases, licensees under License Agreements, or other parties to Service
Contracts, in each case, that are assigned to and assumed by Purchaser at
Closing and which disputes have not been resolved as of Closing and for which
Seller has no obligation to defend after Closing under the terms of the
Assignment (as defined herein) executed by Seller and Purchaser at Closing;
provided, that the foregoing shall not constitute a wavier by Seller of any
attorney/client privilege, attorney/client work product or similar
privilege.
2.1.5 License
Agreements. All of Seller’s right, title and interest in
and to all agreements (other than Leases), if any, for the leasing or licensing
of rooftop space or equipment, telecommunications equipment, cable access and
other space, equipment and facilities that are located on or within the Real
Property and generate income to Seller as the owner of the Real
Property, including agreements which may be made by Seller after the Effective
Date and prior to Closing as permitted by this Agreement (the
“License Agreements”). Anything in this
Agreement to the contrary notwithstanding, Purchaser shall assume the
obligations of the “lessor” or “licensor” under all License Agreements, some or
all of which may be non-cancelable.
ARTICLE
3
XXXXXXX
MONEY
3.1 Deposit
and Investment of Xxxxxxx Money. Within three Business
Days after the Effective Date, Purchaser shall deposit the Non-Refundable
Deposit and, in the event Purchaser has not elected to terminate this Agreement
pursuant to Section 4.5, the
Additional Deposit with Escrow Agent. Escrow Agent shall invest the
Xxxxxxx Money in government insured interest-bearing accounts satisfactory
to
Seller and Purchaser, shall not commingle the Xxxxxxx Money with any funds
of
Escrow Agent or others, and shall promptly provide Purchaser and Seller with
confirmation of the investments made. All interest earned on the Xxxxxxx Money
shall become a part thereof for all purposes hereunder. Such account
shall have no penalty for early withdrawal, and Purchaser accepts all risks
with
regard to such account.
3.2 Independent
Consideration. If Purchaser elects to terminate this
Agreement for any reason and is entitled to receive a return of any portion
of
the Xxxxxxx Money pursuant to the terms hereof, the Escrow Agent shall first
disburse to Seller One Hundred and No/100 Dollars ($100.00) as independent
consideration for Seller’s performance under this Agreement
(“Independent Consideration”), which shall be retained
by Seller in all instances.
3.3 Form;
Failure to Deposit. The Xxxxxxx Money shall be in the
form of a certified or cashier’s check or the wire transfer to Escrow Agent of
immediately available U.S. federal funds. If Purchaser fails to
timely deposit any portion of the Xxxxxxx Money within the time periods required
and such failure continues for two (2) Business Days after written notice
thereof from Seller, Seller may terminate this Agreement by written notice
to
Purchaser, in which event any Xxxxxxx Money that has previously been deposited
by Purchaser with Escrow Agent shall be immediately delivered to Seller and
thereafter the parties hereto shall have no further rights or obligations
hereunder, except for rights and obligations which, by their terms, survive
the
termination hereof.
3.4 Disposition
of Xxxxxxx Money. The Xxxxxxx Money shall be applied as
a credit to the Purchase Price at Closing, or if this transaction is not
consummated, the Xxxxxxx Money shall be disbursed in accordance with the
provisions of this Agreement.
ARTICLE
4
DUE
DILIGENCE
4.1 Due
Diligence Materials To Be Delivered. Seller shall
deliver to Purchaser the following (the “Property
Information”) on or before the Property Information Delivery
Date:
4.1.1 Rent
Roll. A current rent roll in Seller’s standard form
(“Rent Roll”) for the Property;
4.1.2 Tenant
Xxxxxxxx. Copies of tenant xxxxxxxx for the current year
and for years 2006, 2005 (to the extent in the possession of Seller or its
property manager) and 2004 (to the extent in the possession of Seller or its
property manager);
4.1.3 Contraction
Option Report. A schedule of contraction options of
tenants under Leases in effect as of a date no earlier than two (2) Business
Days prior to the Effective Date;
4.1.4 Termination
Option Report. A schedule of termination options of
tenants under Leases in effect as of a date no earlier than two (2) Business
Days prior to the Effective Date;
4.1.5 Tenant
Improvement/Leasing Commission/Rental Concession
Report. A schedule of outstanding tenant improvements,
leasing commissions and rental concessions (e.g., free, reduced or
abated rent) under Leases in effect as of a date no earlier than two (2)
Business Days prior to the Effective Date;
4.1.6 Tenancy
Report. A report or diagram depicting space leased in
the Improvements as of a date no earlier than two (2) Business Days prior to
the
Effective Date;
4.1.7 Leases. Copies
of all Leases in effect as of the Effective Date (or, at Seller’s option, Seller
may make the Leases available for review by Purchaser at the offices of Seller’s
property manager as provided in Section 4.2 below);
4.1.8 Financial
Information. Copies of (a) Seller’s budget for the
Property for the year 2007, (b) the general ledger for the Property for the
year 2006 (separately for the respective periods of ownership of Seller’s
predecessor in title, The Equitable-Nissei Dallas Company, and Seller),
operating statements pertaining to the Property for the years 2003 through
2006
and a year-to-date operating statement for the year 2007 through August 2007),
(c) a schedule of amortized costs for the Property, and (d) an ARGUS
cash flow model (with assumptions) for the Property;
4.1.9 Plans
and Specifications. Copies of structural, electrical,
mechanical and architectural drawings for the Improvements;
4.1.10 Floor
Plans. Copies of floor plans for the
Improvements;
4.1.11 Environmental
Reports. A copy of any environmental reports or site
assessments related to the Property;
4.1.12 Tax
Statements. A copy of ad valorem tax statements relating
to the Property for the current tax period;
4.1.13 Service
Contracts. A list, together with copies, of Service
Contracts;
4.1.14 Personal
Property. A list of Tangible Personal
Property;
4.1.15 License
Agreements. A list, together with copies, of any License
Agreements; and
4.1.16 Skybridge
Agreements. Copies of the easement agreements relating
to the skybridge connecting the Property to other commercial properties in
downtown Dallas.
Seller’s
obligations to deliver the items listed in Subsections 4.1.2 (as to the years 2004 and 2005),
4.1.8(b)(as
to years prior to 2006), 4.1.11 and 4.1.12
shall be limited to the extent such
items are in the possession of Seller or its property management
company.
4.2 Due
Diligence Materials To Be Made Available. To the extent
such items are in Seller’s possession and not required to be delivered to
Purchaser under Section 4.1, Seller
shall make available to Purchaser for Purchaser’s review at the offices of
Seller’s property manager or on the Diligence Website (as defined below), the
following items and information (the “Additional Property
Information”) on or before the Property Information Delivery Date,
and Purchaser at its expense shall have the right to make copies of
same:
4.2.1 Lease
Files. The lease files for all tenants, including
correspondence, the Leases, amendments, guaranties, any letter agreements and
assignments which are then in effect (“Lease
Files”);
4.2.2 Maintenance
Records and Warranties. Maintenance work orders for the
12 months preceding the Effective Date and unexpired warranties, if any, on
roofs, air conditioning units, fixtures and equipment;
4.2.3 Licenses,
Permits and Certificates of Occupancy. Licenses, permits
and certificates of occupancy relating to the Property; and
4.2.4 Additional
Due Diligence Materials. The additional documents and
materials described on Exhibit J
hereto. Notwithstanding anything to the contrary herein or in Exhibit J hereto, such additional
documents and materials must relate exclusively to the ownership, operation
or
maintenance of the Property, as distinguished from Seller, as an entity, or
its
direct or indirect owners (thus excluding, by way of example and not by way
of
limitation, entity formation documents, constituent documents, tax returns
and
other filings relating to Seller or any of its direct or indirect owners, loan
documents) and shall not include any items that are excluded from the definition
of any component of the Property described in Sections 2.1.1 through 2.1.5).
4.3 Acknowledgment
by Purchaser; Diligence Website.
4.3.1 Acknowledgment. Purchaser
hereby acknowledges that (a) all Property Information and the Additional
Property Information may be delivered through the Diligence Website (as defined
below), other than hard copies of the Survey and Title Commitment documents
or
as otherwise customary, and (b) Purchaser will be deemed to have knowledge
of all Property Information and Additional Property Information Seller has
posted to the Diligence Website prior to the Closing provided all such Property
Information and Additional Property Information remains posted on the Diligence
Website and accessible by Purchaser at all times through the Closing, and
provided Seller promptly notifies Purchaser of all updates, additions or changes
to information and materials posted on the Diligence Website.
4.3.2 Diligence
Website. Notwithstanding any provision of this Agreement
to the contrary, in any case in which this Agreement requires Seller to deliver,
issue, make available, or cause to be delivered, issued, or made available,
the
Property Information or Additional Property Information to Purchaser, such
items
shall be deemed delivered to Purchaser upon the first to occur of
(a) actual delivery, or (b) when such items are posted to the Internet
diligence website for the Property at xxxx://xxx.xxx0.xxx (the
“Diligence Website”) and written notice from Seller to
Purchaser of such posting is received by Purchaser. Purchaser has
been given a private direct link to the Diligence Website or an exclusive access
code (the “Diligence URL/Password”) and agrees and
acknowledges that it has the sole responsibility to retrieve all items from
the
Diligence Website for all purposes hereunder.
4.4 Physical
Due Diligence. Commencing on the Effective Date and
continuing until the Closing or earlier termination of this Agreement, Purchaser
shall have reasonable access to the Property at all reasonable times
during normal business hours, upon appropriate notice to tenants as
permitted or required under the Leases, for the purpose of conducting reasonably
necessary tests, including surveys and architectural, engineering, geotechnical
and environmental inspections and tests, provided that (a) Purchaser must give
Seller two full Business Days’ prior telephone or written notice of any such
inspection or test, and with respect to any intrusive inspection or test (i.e.,
core sampling) must obtain Seller’s prior written consent, which consent may be
given, withheld or conditioned in Seller’s sole discretion, provided, that if
any Phase I environmental site assessment obtained by Purchaser (or on which
Purchaser is permitted to rely under a reliance letter) recommends (or if
Purchaser’s environmental consultant, Terracon, Inc., otherwise recommends)
additional environmental testing with respect to the Land or Improvements based
on the actual presence or reasonably suspected presence or release of any
recognized environmental condition that was not referred to in any environmental
report, assessment or related document among the Property Documents, then Seller
shall not unreasonably withhold, condition or delay its consent to the
performance of such additional recommended testing, (b) prior to performing
any
inspection or test, Purchaser must deliver a certificate of insurance to Seller
evidencing that Purchaser and its contractors, agents and representatives have
in place (and Purchaser and its contractors, agents and representatives shall
maintain during the pendency of this Agreement) (1) commercial general liability
insurance with limits of at least Two Million Dollars ($2,000,000) per
occurrence for bodily or personal injury or death or damage to property, (2)
contractual liability insurance with respect to Purchaser’s obligations
hereunder, and (3) workers’ compensation insurance in accordance with applicable
law, all covering any accident arising in connection with the presence of
Purchaser, its contractors, agents and representatives on the Property, which
insurance shall (A) with respect to the insurance under clause (1), name as
additional insureds thereunder Seller and such other parties holding insurable
interests as Seller may designate and (B) be written by a reputable insurance
company having a rating of at least “A:V” by Best’s Rating Guide (or a
comparable rating by a successor rating service), and (C) with respect to the
insurance under clause (1), shall otherwise be reasonably acceptable to Seller,
and (c) all such tests shall be conducted by Purchaser in compliance with
Purchaser’s responsibilities set forth in Section 4.10 below. Purchaser shall bear
the cost of all such inspections or tests and shall be responsible for and
act
as the generator with respect to any wastes generated by those tests, which
obligation shall survive the termination of this Agreement for a period of
two
(2) years. Subject to the provisions of Section 4.8 hereof, Purchaser or Purchaser’s
representatives may communicate with any tenant; provided, however, Purchaser
must contact Seller at least one full Business Day in advance by telephone
to
inform Seller of Purchaser’s intended communication with any tenant and to allow
Seller the opportunity to participate in such communication if Seller
desires. Subject to the provisions of Section 4.8 hereof, Purchaser or Purchaser’s
representatives may communicate with any governmental authority for the sole
purpose of gathering information in connection with the transaction contemplated
by this Agreement; provided, however, Purchaser must contact Seller at least
one
full Business Day in advance by telephone to inform Seller of Purchaser’s
intended communication with any governmental authority and to allow Seller
the
opportunity to participate in such communication if Seller
desires. As used in this Section, “communicate” and “communication”
shall mean the initiation of, response to, or sharing or exchange of
information, knowledge or messages, whether by oral, written or electronic
methods or media, or by any other means for the purpose of knowingly subverting
the provisions of this Section regarding Purchaser’s obligations to provide
Seller with prior notice of such communication and Seller’s ability to
participate in such communication.
4.5 Due
Diligence/Termination Right. Purchaser shall have
through the last day of the Inspection Period in which to (a) examine, inspect,
and investigate the Property Information and the Additional Property Information
(collectively, the “Property Documents”) and the
Property and, in Purchaser’s sole and absolute judgment and discretion,
determine whether the Property is acceptable to Purchaser, (b) obtain all
necessary internal approvals, and (c) satisfy all other contingencies of
Purchaser. Notwithstanding anything to the contrary in this
Agreement, Purchaser may terminate this Agreement for any reason or no reason
by
giving written notice of termination to Seller and Escrow Agent (the
“Due Diligence Termination Notice”) on or before the
last day of the Inspection Period. If Purchaser timely gives a Due
Diligence Termination Notice, the Non-Refundable Deposit shall be immediately
disbursed to Seller and the remaining balance of the Xxxxxxx Money shall be
immediately returned to Purchaser, and the parties hereto shall have no further
rights or obligations, other than those that by their terms survive the
termination of this Agreement. If Purchaser does not timely give a
Due Diligence Termination Notice, this Agreement shall continue in full force
and effect, Purchaser shall be deemed to have waived its right to terminate
this
Agreement pursuant to this Section 4.5,
and Purchaser shall be deemed to have acknowledged that it has received or
had
access to all Property Documents and conducted all inspections and tests of
the
Property that it considers important. If Purchaser timely gives a Due
Diligence Termination Notice but does not deposit the Non-Refundable Deposit
as
required by Section 3.1, Purchaser shall
be obligated to pay the Non-Refundable Deposit to Seller and Seller shall have
the right to recover the Non-Refundable Deposit from Purchaser, anything herein
to the contrary notwithstanding.
4.6 Return
of Documents and Reports. As additional consideration
for the transaction contemplated herein, Purchaser shall provide to Seller,
immediately following receipt of same by Purchaser, copies of all third party
reports, investigations and studies, other than economic analyses (collectively,
the “Reports” and, individually, a
“Report”) prepared for Purchaser
in connection with its
due diligence review of the Property, including, without limitation, any and
all
Reports involving structural or geological conditions, environmental, hazardous
waste or hazardous substances contamination of the Property, if any, which
Reports shall be addressed to both Seller and Purchaser at no cost to
Seller. The Reports shall be delivered to Seller without any
representation or warranty as to the completeness or accuracy of the Reports
or
any other matter relating thereto. Additionally, if Purchaser
terminates this Agreement, Purchaser shall return to Seller (or if such return
is not practicable, Purchaser shall destroy [and shall certify to Seller in
writing that Purchaser has destroyed]) all Property Documents delivered by
Seller to Purchaser (or downloaded, copied or printed by Purchaser from the
Diligence Website on any media) and copies thereof within three Business Days
after such termination. Purchaser’s obligation to deliver the Property Documents
and the Reports to Seller shall survive the termination of this Agreement for
a
period of two (2) years.
4.7 Service
Contracts. On or prior to the last day of the Inspection
Period, Purchaser will advise Seller in writing of which Service Contracts
it
will assume and for which Service Contracts Purchaser requests that Seller
deliver written termination at or prior to Closing, provided Seller shall have
no obligation to terminate, and Purchaser shall be obligated to assume the
elevator Service Contracts and the Reliant Energy electric Service Contract
(it
being agreed that Purchaser may elect to require Seller to terminate all other
Service Contracts as provided above). Seller shall deliver at Closing
notices of termination of all Service Contracts that are not so
assumed. Purchaser must assume the obligations arising from and after
the Closing Date under those Service Contracts (a) that Purchaser has agreed
to
assume, or that Purchaser is obligated to assume pursuant to this Section 4.7, and (b) for which a termination
notice
is delivered as of or prior to Closing but for which termination is not
effective until after Closing.
4.8 Proprietary
Information; Confidentiality. Purchaser acknowledges
that the Property Documents and the Diligence URL/Password are proprietary
and
confidential and will be delivered to Purchaser solely to assist Purchaser
in
determining the feasibility of purchasing the Property. Purchaser
shall not use the Property Documents or the Diligence URL/Password for any
purpose other than as set forth in the preceding sentence. Purchaser
shall not disclose the contents of the Property Documents or the Diligence
URL/Password to any person other than to those persons who are responsible
for
determining the feasibility of Purchaser’s acquisition or financing of the
Property (including, without limitation, Purchaser’s and its lenders attorneys
and consultants) and who have agreed to preserve the confidentiality of such
information as required hereby (collectively, “Permitted Outside
Parties”). At any time and from time to time, within two
Business Days after Seller’s request, Purchaser shall deliver to Seller a list
of all parties to whom Purchaser has provided any Property Documents or the
Diligence URL/Password or any information taken from the Property Documents
or
the Diligence Website. Purchaser shall not divulge the contents of
the Property Documents, the Diligence URL/Password or other information except
in strict accordance with the confidentiality standards set forth in this
Section 4.8. In permitting
Purchaser to review the Property Documents or any other information or in
granting Purchaser access to the Diligence Website, Seller has not waived any
privilege or claim of confidentiality with respect thereto, and no third party
benefits or relationships of any kind, either express or implied, have been
offered, intended or created. Purchaser’s obligations under this
Section 4.8 shall survive the
termination of this Agreement for a period of two (2)
years. Notwithstanding the foregoing and notwithstanding the
provisions of Section 12.14, Purchaser
(its affiliates or any entity advised by Purchaser's affiliates) shall be
permitted to disclose this transaction and/or the terms of this transaction
and
information in the Property Documents in any document as may be necessary to
comply with any applicable federal or state securities laws, rules, or
regulations or to comply with the requirements of the Securities and Exchange
Commission.
4.9 No
Representation or Warranty by Seller. Purchaser
acknowledges that, except as expressly set forth in this Agreement, Seller
has
not made and does not make any warranty or representation regarding the truth,
accuracy or completeness of the Property Documents or the source(s)
thereof. Purchaser further acknowledges that some if not all of the
Property Documents were prepared by third parties other than
Seller. Except as expressly set forth in this Agreement, Seller
expressly disclaims any and all liability for representations or warranties,
express or implied, statements of fact and other matters contained in such
information, or for omissions from the Property Documents, or in any other
written or oral communications transmitted or made available to
Purchaser. Except as expressly set forth in this Agreement, Purchaser
shall rely solely upon its own investigation with respect to the Property,
including, without limitation, the Property’s physical, environmental or
economic condition, compliance or lack of compliance with any ordinance, order,
permit or regulation or any other attribute or matter relating
thereto. Seller has not undertaken any independent investigation as
to the truth, accuracy or completeness of the Property Documents and are
providing the Property Documents solely as an accommodation to
Purchaser.
4.10 Purchaser’s
Responsibilities. In conducting any inspections,
investigations or tests of the Property and/or Property Documents, Purchaser
and
its agents and representatives shall: (a) not unreasonably disturb
the tenants or unreasonably interfere with their use of the Property pursuant
to
their respective Leases; (b) not unreasonably interfere with the operation
and
maintenance of the Property; (c) not damage any part of the Property or any
personal property owned or held by any tenant or any third party; (d) not injure
or otherwise cause bodily harm to Seller or its agents, guests, invitees,
contractors and employees or any tenants or their guests or invitees; (e) comply
with all applicable laws; (f) promptly pay when due the costs of all tests,
investigations, and examinations done with regard to the Property; (g) not
permit any liens to attach to the Real Property by reason of the exercise of
its
rights hereunder; (h) repair any damage to the Real Property resulting directly
or indirectly from any such inspection or tests; and (i) not reveal or disclose
prior to Closing any information obtained during the Inspection Period
concerning the Property and the Property Documents or the Diligence URL/Password
to anyone other than the Permitted Outside Parties, in accordance with the
confidentiality standards set forth in Section 4.8 above, or except as may be otherwise
required by law or permitted by said Section 4.8. Purchaser’s obligations
under this Section 4.10 shall survive
the termination of this Agreement for a period of two (2) years and shall
survive the Closing for a period of two (2) years.
4.11 Purchaser’s
Agreement to Indemnify. Purchaser hereby agrees to
indemnify, defend and hold Seller harmless from and against any and all liens,
claims, causes of action, damages, liabilities and expenses (including
reasonable attorneys’ fees) arising out of Purchaser’s inspections or tests
permitted under this Agreement or any violation of the provisions of Sections
4.4, 4.8
and 4.10; provided, that the indemnity shall
not extend to protect Seller from any pre-existing liabilities for matters
merely discovered by Purchaser (i.e., latent environmental contamination) so
long as Purchaser’s actions do not aggravate any pre-existing liability of
Seller. Purchaser’s obligations under this Section 4.11 shall survive for a period of two
(2)
years after the termination of this Agreement and shall survive the Closing
for
a period of two (2) years.
ARTICLE
5
TITLE
AND SURVEY
5.1 Title
Commitment. Seller shall cause to be prepared and
delivered to Purchaser on or before the Title Commitment Delivery
Date: (a) a current commitment for title insurance or preliminary
title report (the “Title Commitment”) issued by the
Title Company, in the amount of the Purchase Price and on a Texas T-1 Form
commitment, with Purchaser as the proposed insured, and (b) copies of all
documents of record referred to in the Title Commitment as exceptions to title
to the Property.
5.2 Updated
Survey. On or before the Title Commitment Delivery Date,
Seller shall deliver to Purchaser a copy of the most-current survey of the
Real
Property in Seller’s possession (the
“Survey”). Purchaser may revise, modify or
recertify the Survey as necessary in order for the Title Company to modify
the
survey exception in the Title Policy to the extent permitted by applicable
rules
of the Texas State Board of Insurance or otherwise satisfy Purchaser’s
objectives.
5.3 Title
Review. During the Title and Survey Review Period,
Purchaser shall review title to the Property as disclosed by the Title
Commitment and the Survey. Seller shall have no obligation to cure
title objections, except liens (including, without limitation, mortgage, deed
of
trust and other financing liens, mechanic’s and materialmen’s liens, and tax and
assessment liens [other than any such liens for taxes not yet due and payable])
of an ascertainable amount created by, under or through Seller (collectively,
“Seller Liens”), which Seller Liens Seller shall cause
to be released (or bond or insure around, in the case of any such mechanic’s and
materialmen’s liens) at Seller’s sole cost and expense at or prior to Closing
(with Seller having the right to apply the Purchase Price or a portion thereof
for such purpose), and Seller shall deliver the Property free and clear of
any
such Seller Liens. Seller further agrees to remove any exceptions or
encumbrances to title which are voluntarily created by, under or through Seller
after the Effective Date without Purchaser’s consent. The term
“Permitted Exceptions” shall mean: the
specific exceptions (excluding exceptions that are part of the promulgated
title
insurance form) in the Title Commitment that the Title Company has not agreed
to
remove from the Title Commitment as of the end of the Title and Survey Review
Period and that Seller is not required to remove as provided above; matters
created by, through or under Purchaser; items shown on the Survey which have
not
been removed as of the end of the Inspection Period; real estate taxes not
yet
due and payable; and rights of tenants under the Leases, as tenants only,
without any right or option to purchase the Property, and rights of licensees
under the License Agreements.
5.4 Delivery
of Title Policy at Closing. In the event that the Title
Company does not issue at Closing, or unconditionally and irrevocably commit
at
Closing to issue, to Purchaser, an owner’s title policy in accordance with the
Title Commitment, insuring Purchaser’s fee simple title to the Real Property in
the amount of the Purchase Price, subject only to the standard exceptions and
exclusions from coverage contained in such policy and the Permitted Exceptions
(the “Title Policy”), Purchaser shall have the right to
terminate this Agreement, in which case the Xxxxxxx Money shall be immediately
returned to Purchaser, and the parties hereto shall have no further rights
or
obligations, other than those that by their terms survive the termination of
this Agreement.
ARTICLE
6
OPERATIONS
AND RISK OF LOSS; TENANT ESTOPPELS; SKYBRIDGE
ESTOPPELS
6.1 Ongoing
Operations. From the Effective Date through
Closing:
6.1.1 Leases,
Service Contracts and License Agreements. Seller will
perform its material obligations under the Leases, Service Contracts and License
Agreements.
6.1.2 New
Contracts. Except as provided in Section 6.1.4, Seller will not enter
into any
contract that will be an obligation affecting the Property subsequent to the
Closing, except contracts entered into in the ordinary course of business that
are terminable without cause and without the payment of any termination penalty
on not more than 30 days’ prior notice.
6.1.3 Maintenance
of Improvements; Insurance; Removal of Personal
Property. Subject to Sections 6.2 and 6.3,
Seller shall maintain or cause the
tenants under the Leases to maintain all Improvements substantially in their
present condition (ordinary wear and tear and casualty excepted) and in a manner
consistent with Seller’s maintenance of the Improvements during Seller’s period
of ownership. Seller shall maintain existing insurance coverage in
full force and effect. Seller shall not materially modify its
property management practices, defer maintenance or otherwise materially change
its operating procedures with respect to the Property; provided, that the
foregoing shall not prohibit Seller from complying with or observing the
requirements or conditions of the loan documents relating to Seller’s financing
with respect to the Property. Seller will not remove any Tangible
Personal Property except as may be required for necessary repair or replacement,
and replacement shall be of approximately equal quality and quantity as the
removed item of Tangible Personal Property.
6.1.4 Leasing;
License Agreements. Except as provided in Section 7.3.10, Seller will not amend
or terminate
any existing Lease or License Agreement or enter into any new Lease or new
License Agreement without providing Purchaser (a) all relevant supporting
documentation, including, without limitation, tenant financial information
to
the extent in Seller’s possession, and (b) Seller’s written request for
Purchaser’s approval. Purchaser agrees to give Seller written notice
of approval (which Purchaser agrees not to unreasonably withhold or delay)
or
disapproval of a proposed amendment or termination of a Lease or License
Agreement or new Lease or new License Agreement within three (3) Business Days
after Purchaser’s receipt of the items in Sections 6.1.4(a) and 6.1.4(b). If
Purchaser does not
respond to Seller’s request within such time period, then Purchaser will be
deemed to have approved such amendment, termination or new Lease or new License
Agreement.
6.1.5 High
Desert Lease. Purchaser has approved the terms and
conditions of the Lease to be entered into (or entered into prior to the
Effective Date, as applicable) by Seller with High Desert Energy Group, LLC,
as
tenant, and agrees that Purchaser shall be solely responsible for all Leasing
Costs in connection with such Lease as provided in Section 8.2 (and without any credit from
Seller).
6.2 Damage. If
prior to Closing the Property is damaged by fire or other
casualty, Seller shall obtain from an independent engineer a good
faith estimate of the cost to repair and the time required to complete repairs
and will provide Purchaser written notice of such estimation (the
“Casualty Notice”) as soon as reasonably possible after
the occurrence of the casualty.
6.2.1 Material. In
the event of any Material Damage to or destruction of the Property or any
portion thereof prior to Closing, Purchaser may, at its option, terminate this
Agreement by delivering written notice to Seller on or before the expiration
of
thirty (30) days after the date Seller delivers the Casualty Notice to Purchaser
(and if necessary, the Closing Date shall be extended to give Purchaser the
full
30-day period to make such election and to obtain insurance settlement
agreements with Seller’s insurers). Upon any such termination, the
Xxxxxxx Money shall be returned to Purchaser and the parties hereto shall have
no further rights or obligations hereunder, other than those that by their
terms
survive the termination of this Agreement. If Purchaser does not
elect to terminate this Agreement within said 30-day period, then Purchaser
shall be deemed to have waived its right to terminate under this Section 6.2.1 and the parties shall proceed under
this Agreement and close on schedule (subject to extension of Closing as
provided above), and as of Closing Seller shall assign to Purchaser, without
representation or warranty by or recourse against Seller, all of Seller’s rights
in and to any resulting insurance proceeds (including any rent loss or business
interruption insurance applicable to any period on and after the Closing Date)
due Seller as a result of such damage or destruction and Purchaser shall assume
full responsibility for all needed repairs, and Purchaser shall receive a credit
at Closing for any deductible amount (or any applicable self-insured retention
amount) under such insurance policies (but the amount of the deductible plus
insurance proceeds shall not exceed the sum of (a) the lesser of
(1) the actual cost of repair or (2) the Purchase Price, plus
(b) a pro rata share of the rental or business loss proceeds, if
any). For the purposes of this Agreement, “Material
Damage” and “Materially Damaged” means
damage which (A) exceeds 1% of the Purchase Price to repair, or
(B) would otherwise permit any Key Tenant to terminate its Lease under the
terms thereof (unless such termination right is fully and irrevocably waived
by
such tenant with respect to the applicable damage in question).
6.2.2 Not
Material. If the Property is not Materially Damaged,
then Purchaser shall not have the right to terminate this Agreement, and Seller
shall, at its option, either (a) repair the damage before the Closing
in a manner reasonably satisfactory to Purchaser (and if necessary, Seller
may
extend the Closing Date up to thirty (30) days to complete such repairs), or
(b)
credit Purchaser at Closing for the reasonable cost to complete the repair
(in
which case Seller shall retain all insurance proceeds (other than a pro rata
share of the rental or business loss proceeds payable under insurance policies
for any period from and after the Closing Date, which shall be credited to
Purchaser) and Purchaser shall assume full responsibility for all needed
repairs).
6.3 Condemnation. If
proceedings in eminent domain are instituted with respect to the Property or
any
portion thereof, Purchaser may, at its option, by written notice to Seller
given
within ten (10) days after Seller notifies Purchaser of such proceedings (and
if
necessary the Closing Date shall be automatically extended to give Purchaser
the
full ten (10)-day period to make such election), either: (a)
terminate this Agreement, in which case the Xxxxxxx Money shall be immediately
returned to Purchaser and the parties hereto shall have no further rights or
obligations, other than those that by their terms survive the termination of
this Agreement, or (b) proceed under this Agreement, in which event Seller
shall, at the Closing, assign to Purchaser its entire right, title and interest
in and to any condemnation award, and Purchaser shall have the sole right after
the Closing to negotiate and otherwise deal with the condemning authority in
respect of such matter. If Purchaser does not give Seller written
notice of its election within the time required above, then Purchaser shall
be
deemed to have elected option (b)
above.
6.4 Tenant
Estoppels. It is a condition precedent to Purchaser’s
obligation to proceed to close hereunder that, on or before the date that is
three (3) Business Days prior to the Closing Date (the “Estoppel
Deadline”) Seller shall have received and provided to Purchaser
estoppel certificates, substantially in the form attached hereto as Exhibit F without material
modification (except such certificate need only comply with the provisions
of
any Lease that specify the form or content of an estoppel to be delivered by
the
tenant thereunder) (each, a “Tenant Estoppel”) from the
Key Tenants (as defined in the Basic Provisions) and from other tenants which
in
the aggregate, together with the Key Tenants, lease at least seventy-five
percent (75%) of the rentable square footage of the Improvements leased to
all
tenants (the “Required Estoppel Percentage”), all in
accordance with and subject to the provisions of this Section 6.4. Seller will furnish
Purchaser copies of Tenant Estoppels promptly following receipt. In
the event that Seller is unable to deliver the Required Estoppel Percentage
of
Tenant Estoppels on or before the Estoppel Deadline, Seller, at its sole option,
may execute an estoppel certificate in substantially the form attached hereto
as
Exhibit F (except such
certificate need only comply with the provisions of any Lease that specify
the
form or content of an estoppel to be delivered by the tenant thereunder) (each,
a “Seller Estoppel”) on behalf of the tenants necessary
to meet the Required Estoppel Percentage and deliver same to Purchaser on or
before the Estoppel Deadline; provided, that (a) Seller’s liability under
any such Seller Estoppel so executed and delivered by Seller shall cease and
terminate upon the earlier of the receipt by Purchaser following the Closing
of
a duly executed Tenant Estoppel from the applicable tenant or the date that
is
nine (9) months after the Closing Date, (b) Seller shall not be permitted
to execute a Tenant Estoppel on behalf of any Key Tenant, (c) Seller shall
not be permitted to execute Tenant Estoppels for other tenants (i.e., non-Key
Tenants) under leases covering more than ten percent (10%) of the total rentable
square footage of the Improvements leased to all such other tenants, and
(d) any Seller Estoppel shall be expressly subject to the limitations set
forth in Sections 9.3 and 9.4
of this Agreement. Subject
to the preceding sentence, each Seller Estoppel shall survive
Closing. If Seller is unable to provide Purchaser with Tenant
Estoppels (and does not elect to provide a Seller Estoppel) for the Required
Estoppel Percentage of Tenant Estoppels in compliance with the provisions of
this Section 6.4, then Purchaser, as its
sole remedies and recourses, may either (1) waive the estoppel requirement
and proceed to Closing without any reduction in the Purchase Price or
(2) terminate this Agreement by immediate written notice thereof to Seller,
whereupon the Xxxxxxx Money shall be immediately returned to Purchaser, and
the
parties hereto shall have no further rights or obligations, other than those
that by their terms survive the termination of this Agreement. An
estoppel from a Tenant shall not constitute a “Tenant Estoppel” under this
Section 6.4 if: (A) the terms
of the lease and other agreements confirmed by the estoppel are materially
different from the terms in the Property Documents; (B) the tenant modifies
any of the statements which discloses materially adverse matters and about
which
Purchaser had not received written notice prior to the expiration of the
Inspection Period, or (C) the tenant indicates any of the following which
has not been previously disclosed to Purchaser in writing prior to the
expiration of the Inspection Period: (i) that Seller is in material default
pursuant to the respective Lease, (ii) that the tenant as a material claim
or material offset right for which Seller is unwilling or unable to give
Purchaser a credit in cash at Closing, or (iii) that there is a material
dispute.
Additionally,
Seller hereby agrees to deliver to each of the tenants under the Leases
Purchaser’s (or its lender’s) form of subordination, non-disturbance and
attornment agreement, which shall not be factually inaccurate or contain any
manifest, errors provided that in no event shall the receipt of such
subordination, non-disturbance or attornment agreements by Purchaser or its
lender be a condition to Closing.
6.5 Skybridge
Estoppels. Seller shall use commercially reasonable
efforts to obtain and deliver to Purchaser prior to the expiration of the
Inspection Period estoppel certificates, in the form attached as Exhibit K hereto (the
“Skybridge Estoppels”),
from the other parties to the
skybridge agreements described in Section 4.1.16, provided, that Seller shall not
be
obligated to expend any funds (other than de minimis costs such as
postage, courier fees, facsimile and telephone toll charges, etc., and any
fees
of Seller’s attorneys related to the preparation of such estoppels) in
connection with obtaining any of the Skybridge
Estoppels. Notwithstanding anything herein to the contrary, it shall
not be a condition to Purchaser’s obligation to close hereunder that Seller
deliver the Skybridge Estoppels to Purchaser, and in no event shall the failure
of any Skybridge Estoppel to be delivered to Purchaser be deemed a default
by
Seller hereunder. Additionally, Seller shall reasonably cooperate (at no
material expense to Seller) with Purchaser in Purchaser’s efforts to obtain
similar estoppel letters from the City of Dallas with respect to the City of
Dallas Ordinances relating to the skybridges and with respect to the City of
Dallas Ordinance relating to the planter boxes along Xxxx Avenue, San Jacinto
Street and Pearl Street and to the rotunda step encroachment along Xxxx Avenue;
provided, that it shall not be a condition to Purchaser’s obligation to close
hereunder that Purchaser obtain any such estoppel letter from the City of
Dallas.
ARTICLE
7
CLOSING
7.1 Closing. The
consummation of the transaction contemplated herein
(“Closing”) shall occur on the Closing Date at the
offices of Escrow Agent (or such other location as may be mutually agreed upon
by Seller and Purchaser). Funds shall be deposited into and held by
Escrow Agent in a closing escrow account with a bank satisfactory to Purchaser
and Seller. Upon satisfaction or completion of all closing conditions
and deliveries, the parties shall direct Escrow Agent to immediately record
and
deliver the closing documents to the appropriate parties and make disbursements
according to the closing statements executed by Seller and
Purchaser.
7.2 Conditions
to Parties’ Obligation to Close.
7.2.1 Conditions
to Seller’s Obligation. In addition to all other
conditions set forth herein, the obligation of Seller to consummate the
transactions contemplated hereunder are conditioned upon the
following:
(a) Representations
and Warranties. Purchaser’s representations and
warranties contained herein shall be true and correct in all material respects
as of the Effective Date and the Closing Date, except that representations
and
warranties made as of, or limited by, a specific date (including the Effective
Date, if so specified or limited), which will be true and correct in all
material respects as of the specified date or as limited by the specified
date;
(b) Deliveries. As
of the Closing Date, Purchaser shall have tendered all deliveries to be made
at
Closing pursuant to Sections 7.4
and 7.5; and
(c) Actions,
Suits, etc. There shall exist no pending or threatened
actions, suits, arbitrations, claims, attachments, proceedings, assignments
for
the benefit of creditors, insolvency, bankruptcy, reorganization or other
proceedings, against Purchaser that would materially and adversely affect
Purchaser’s ability to perform its obligations under this
Agreement.
7.2.2 Conditions
to Purchaser’s Obligation. In addition to all other
conditions set forth herein, the obligation of Purchaser to consummate the
transactions contemplated hereunder are conditioned upon the
following:
(a) Representations
and Warranties. Seller’s representations and warranties
contained herein shall be true and correct in all material respects as of the
Effective Date and the Closing Date, except that representations and warranties
made as of, or limited by, a specific date (including the Effective Date, if
so
specified or limited), which will be true and correct in all material respects
as of the specified date or as limited by the specified date;
(b) Deliveries. As
of the Closing Date, Seller shall have tendered all deliveries to be made at
Closing pursuant to Sections 7.3
and 7.5;
(c) Actions,
Suits, etc. There shall exist no pending or threatened
actions, suits, arbitrations, claims, attachments, proceedings, assignments
for
the benefit of creditors, insolvency, bankruptcy, reorganization or other
proceedings, against Seller that would materially and adversely affect Seller’s
ability to perform its obligations under this Agreement;
(d) Owner
Title Policy. The Title Company shall issue, or
unconditionally and irrevocably commit to issue, at Closing the Title Policy
in
accordance with the requirements of Section 5.4;
(e) Tenant
Estoppels. Seller shall have delivered to Purchaser the
Required Estoppel Percentage of Tenant Estoppels (including any Seller Estoppel)
in the required form and otherwise in compliance with Section 6.4; and
(f) Key
Tenants. No Key Tenant shall be in default under its
Lease (beyond any applicable notice and grace period set forth therein) with
respect to the payment of any rental thereunder or in respect of any other
material term thereof, and no Key Tenant (or any guarantor of any Key Tenant’s
Lease) shall have filed for bankruptcy, be subject to an involuntary bankruptcy
proceeding, been adjudicated bankrupt or admitted in writing its inability
to
pay its debts as they become due or have had a receiver appointed for any of
its
assets. Notwithstanding the foregoing, neither the existence of the
Xxxxx Lord Electrical Charge Dispute defined in Section 8.7 nor the dispute regarding the Xxxxx
Lord Termination Fee defined in Section 8.1.3(c) shall constitute a
non-satisfaction of the condition in this Section 7.2.2(f).
7.2.3 Non-Satisfaction
of Conditions. So long as a party is not in default
hereunder, if any condition to such party’s obligation to proceed with the
Closing hereunder (a “Closing Condition”) has not been
satisfied as of the Closing Date (or such earlier date as is provided herein),
subject to any applicable notice and cure periods provided in Sections 10.1 and 10.2,
such party may, as its sole remedies
and recourses, either (a) terminate this Agreement by delivering written
notice to the other party on or before the Closing Date (or such earlier date
as
is provided herein) and if Purchaser terminates this Agreement under this
Section 7.2.3, the Xxxxxxx Money shall
be immediately returned to Purchaser, or (b) elect to close (or to permit
any such earlier termination deadline to pass) notwithstanding the
non-satisfaction of such Closing Condition, in which event such party shall
be
deemed to have waived such Closing Condition. In the event such party
elects to close (or to permit any such earlier termination deadline to pass),
notwithstanding the non-satisfaction of such Closing Condition, such party
shall
be deemed to have waived such Closing Condition, and there shall be no liability
on the part of any other party hereto for breaches of representations and
warranties of which the party electing to close had knowledge at the
Closing. Notwithstanding any provision of this Section 7.2.3 to the contrary, if the Closing
Conditions set forth in Section 7.2.1(b)
or 7.2.2(b) are not satisfied, the
provisions of Article 10 of this
Agreement shall govern the rights and remedies of the parties
hereunder.
7.3 Seller’s
Deliveries in Escrow. As of or prior to the Closing
Date, Seller shall deliver in escrow to Escrow Agent the following:
7.3.1 Deed. A
special warranty deed in the form of Exhibit B hereto, including a list
of Permitted Exceptions to which the conveyance shall be subject, executed
and
acknowledged by Seller, conveying to Purchaser the Real Property (the
“Deed”);
7.3.2 Xxxx
of Sale, Assignment and Assumption. A Xxxx of Sale,
Assignment and Assumption of Leases and Contracts in the form of Exhibit C hereto (the
“Assignment”),
executed and acknowledged by Seller,
vesting in Purchaser Seller’s right, title and interest in and to the property
described therein free of any claims, except for the Permitted Exceptions to
the
extent applicable;
7.3.3 FIRPTA. A
Foreign Investment in Real Property Tax Act affidavit in the form of Exhibit D hereto executed by
Seller;
7.3.4 Authority. Evidence
of the existence, organization and authority of Seller and of the authority
of
the persons executing documents on behalf of Seller reasonably satisfactory
to
Purchaser and the underwriter for the Title Policy;
7.3.5 Seller’s
Affidavit. An affidavit of debts, liens and parties in
possession, in form and substance reasonably acceptable to Seller and the Title
Company;
7.3.6 Letters
of Credit. If applicable, with respect to any security
deposits under the Leases that are letters of credit, Seller, at Seller’s cost
and expense (unless the terms of the Lease in question require the tenant to
pay
such costs), shall, regardless of whether the same are held by Seller (or by
Seller’s mortgagee) (a) deliver such letters of credit, (b) execute
and deliver such other instruments as the issuers of such letters of credit
shall reasonably require to assign or change the name of the beneficiary thereof
to Purchaser, and (c) cooperate with Purchaser to change the named
beneficiary under such letters of credit to Purchaser;
7.3.7 Closing
Date Certificate. Seller’s certificate (the
“Seller’s Closing Date Certificate”) certifying that all
of Seller’s representations and warranties remain true and correct, as of the
Closing Date, except for changes and qualifications specified in Seller’s
Closing Date Certificate, such that Seller’s Closing Date Certificate is true
and correct in all material respects, such certification to be made to the
standard of knowledge, if any, contained in this Agreement for the applicable
representations and warranties of Seller, and shall be subject to all of the
terms, conditions and limitations contained in Sections 9.3 and 9.4
of this Agreement;
7.3.8 Master
Lease and Master Lease Escrow Agreement. Two (2)
originals of (a) a master lease agreement, providing for an 18-month term,
covering certain space at the Property, as determined by Purchaser, the form
of
which will be agreed upon by Purchaser and Seller, each acting reasonably,
prior
to the Closing (the “Master Lease”), duly executed by
Seller, and (b) the Master Lease Escrow Agreement, duly executed in
counterpart by Seller and the Escrow Agent;
7.3.9 Termination
of Property Management Agreement. Evidence reasonably
satisfactory to Purchaser that all property management agreements affecting
the
Property have been terminated at Seller’s sole cost and expense.
7.3.10 Amendment
to Stream Lease. An amendment to Stream Realty Partners,
L.P.’s Lease, executed by Seller and Stream Realty Partners, L.P. and containing
the amendments described in Exhibit
L hereto and otherwise in form and content reasonably satisfactory to
Purchaser;
7.3.11 Post-Closing
Escrow Agreement. Three (3) originals of the
Post-Closing Escrow Agreement, as defined in Section 12.21, executed in counterpart by Seller
and Escrow Agent;
7.3.12 Xxxxx
Lord Escrow Agreement. Three (3) originals of the Xxxxx
Lord Escrow Agreement, as defined in Section 12.22, executed in counterpart by Seller
and Escrow Agent;
7.3.13 Assignments
of City Licenses. Two (2) originals of the following
assignments of licenses granted by the City of Dallas (collectively, the
“License Assignments”):
(a) An
Assignment and Assumption of License in the form of Exhibit M hereto, executed and
acknowledged by Seller with respect to the license granted pursuant to Ordinance
No. 19516;
(b) An
Assignment and Assumption of License in the form of Exhibit N hereto, executed and
acknowledged by Seller with respect to the license granted pursuant to Ordinance
No. 19851; and
(c) An
Assignment and Assumption of License in the form of Exhibit O hereto, executed and
acknowledged by Seller with respect to the license granted pursuant to Ordinance
No. 20029. Purchaser understands that the consent of the City of
Dallas is required for this License Assignment and agrees that this License
Assignment will be delivered to Purchaser at Closing subject to Purchaser’s
obtaining such consent after Closing. Purchaser shall take such
actions and submit such documents to the City of Dallas as may be required
by
the City of Dallas to grant its consent to this License Assignment, and Seller
shall reasonably cooperate (at no material expense to Seller) with Purchaser
in
Purchaser’s efforts to obtain such consent; and
7.3.14 Additional
Documents. Any additional documents that Purchaser,
Escrow Agent or the Title Company may reasonably require for the proper
consummation of the transaction contemplated by this Agreement (provided,
however, no such additional document shall expand any obligation, covenant,
representation or warranty of Seller or result in any new or additional
obligation, covenant, representation or warranty of Seller under this Agreement
beyond those expressly set forth in this Agreement).
7.4 Purchaser’s
Deliveries in Escrow. As of or prior to the Closing
Date, Purchaser shall deliver in escrow to Escrow Agent the
following:
7.4.1 Xxxx
of Sale, Assignment and Assumption. The Assignment,
executed and acknowledged by Purchaser;
7.4.2 Authority. Evidence
of the existence, organization and authority of Purchaser and of the authority
of the persons executing documents on behalf of Purchaser reasonably
satisfactory to Seller and the underwriter for the Title Policy;
7.4.3 Master
Lease and Master Lease Escrow Agreement. Two (2)
originals of the Master Lease and the Master Lease Escrow Agreement, each
executed in counterpart by Purchaser;
7.4.4 Closing
Date Certificate. Purchaser’s certificate (the
“Purchaser’s Closing Date Certificate”) certifying that
all of Purchaser’s representations and warranties remain true and correct, as of
the Closing Date, except for changes and qualifications specified in Purchaser’s
Closing Date Certificate, such that Purchaser’s Closing Date Certificate is true
and correct in all material respects, such certification to be made to the
standard of knowledge, if any, contained in this Agreement for the applicable
representations and warranties of Purchaser, and shall be subject to all of
the
terms, conditions and limitations contained in Section 9.4 of this Agreement;
7.4.5 Post-Closing
Escrow Agreement. Three (3) originals of the Post
Closing Escrow Agreement, each executed in counterpart by
Purchaser;
7.4.6 Xxxxx
Lord Escrow Agreement. Three (3) originals of the Xxxxx
Lord Escrow Agreement, each executed in counterpart by Purchaser;
7.4.7 Assignment
of City Licenses. The License Assignments,
executed and acknowledged by Purchaser; and
7.4.8 Additional
Documents. Any additional documents that Seller, Escrow
Agent or the Title Company may reasonably require for the proper consummation
of
the transaction contemplated by this Agreement (provided, however, no such
additional document shall expand any obligation, covenant, representation or
warranty of Purchaser or result in any new or additional obligation, covenant,
representation or warranty of Purchaser under this Agreement beyond those
expressly set forth in this Agreement).
7.5 Closing
Statements. As of or prior to the Closing Date, Seller
and Purchaser shall deposit with Escrow Agent executed closing statements
consistent with this Agreement in the form required by Escrow
Agent.
7.6 Purchase
Price. At or before Noon local time on the Closing Date,
Purchaser shall deliver to Escrow Agent the Purchase Price, less the Xxxxxxx
Money that is applied to the Purchase Price, plus or minus applicable prorations
and credits hereunder, in immediate, same-day U.S. federal funds wired for
credit into Escrow Agent’s escrow account, which funds must be delivered in a
manner to permit Escrow Agent to deliver good funds to Seller or its designee
on
the Closing Date (and, if requested by Seller, by wire transfer); in the event
that Escrow Agent is unable to deliver good funds to Seller or its designee
on
the Closing Date, then the closing statements and related prorations will be
revised as necessary.
7.7 Possession. Seller
shall deliver possession of the Property to Purchaser at the Closing subject
only to the Permitted Exceptions.
7.8 Delivery
of Books and Records. Immediately after the Closing,
Seller shall deliver to the offices of Purchaser’s property manager or to the
Real Property to the extent in Seller’s or its property manager’s possession or
control: Lease Files; License Agreements; maintenance records and
warranties; plans and specifications; licenses, permits and certificates of
occupancy; copies or originals of all books and records of account, contracts,
and copies of correspondence with tenants and suppliers; all advertising
materials; booklets; and keys.
7.9 Notice
to Tenants. Seller and Purchaser shall each execute, and
Purchaser shall deliver to each tenant immediately after the Closing, a notice
regarding the sale in substantially the form of Exhibit E hereto, or such other form
as may be required by applicable state law. This obligation on the
part of Purchaser shall survive the Closing.
ARTICLE
8
PRORATIONS,
DEPOSITS, COMMISSIONS
8.1 Prorations. At
Closing, the following items shall be prorated as of 11:59 p.m. on the day
preceding the Closing Date as if Purchaser were vested with title to the
Property during the entire Closing Date: Tenant Receivables (defined
below) and other income and rents to the extent they have been collected by
Seller as of Closing; fees and assessments; prepaid expenses and obligations
under Service Contracts; accrued operating expenses; real and personal ad
valorem taxes (“Taxes”); any assessments by private
covenant for the then-current calendar year of Closing; and expenses prepaid
by
other owners to Seller pursuant to the skybridge agreements described in
Section 4.1.16. Specifically, the
following provisions shall apply to such prorations and to post-Closing
collections of Tenant Receivables:
8.1.1 Taxes. If
Taxes for the year of Closing are not known, Taxes shall be prorated based
on
Taxes for the year prior to Closing. Seller reserves the right to
pursue any existing challenge to Taxes and shall be entitled to any refund
or
reduction of Taxes attributable to any time period prior to Closing (however,
Seller shall remain obligated to refund to the applicable tenants or pay to
Purchaser [who shall pay such amounts to the applicable tenants], promptly
after
Seller’s receipt thereof, any portion of any such refund or reduction which must
be paid to such tenants under the terms of their Leases for periods prior to
the
Closing Date, which obligations of Seller and Purchaser shall survive the
Closing and shall not be deemed to be merged into or waived by the instruments
of Closing).
8.1.2 Utilities. Purchaser
shall take all steps necessary to effectuate the transfer of all utilities
to
its name as of the Closing Date, and where necessary, post deposits with the
utility companies. Seller shall ensure that all utility meters are
read as of the Closing Date. Seller shall be entitled to recover any
and all deposits held by any utility company as of the Closing
Date.
8.1.3 Tenant
Receivables. Rents due from tenants under Leases and
from tenants or licensees under License Agreements and operating expenses and/or
taxes payable by tenants under Leases (collectively, “Tenant
Receivables”) and not collected by Seller as of Closing shall not
be prorated between Seller and Purchaser at Closing but shall be apportioned,
if
as and when collected, on the basis of the period for which the same is payable,
as follows:
(a) Tenant
Receivables and other income received from tenants under Leases and/or tenants
or licensees under License Agreements after Closing shall be applied in the
following order of priority: (1) first, to Tenant Receivables
first coming due after Closing and applicable to the period of time after
Closing, which amount shall be retained by Purchaser; (2) second, to
payment of the current Tenant Receivables then due for the month in which the
Closing Date occurs, which amount shall be apportioned between Purchaser and
Seller as of the Closing Date as set forth in Section 8.1 hereof (with Seller’s portion thereof
to be delivered to Seller); (3) third, to payment of Tenant Receivables
first coming due after Closing but applicable to the period of time before
Closing, including, without limitation, the Tenant Receivables described in
Section 8.1.3(b) below
(collectively, “Unbilled Tenant Receivables”), which
amount shall be delivered to Seller; and (4) thereafter, to delinquent
Tenant Receivables which were due and payable as of Closing but not collected
by
Seller as of Closing (collectively, “Uncollected Delinquent Tenant
Receivables”), which amount shall be delivered to
Seller. Any sums received by Purchaser to which Seller is entitled
shall be held in trust for Seller on account of such past due rents payable
to
Seller, and Purchaser shall remit to Seller any such sums received by Purchaser
to which Seller is entitled within ten Business Days after receipt thereof
less
reasonable, actual costs and expenses of collection, including reasonable
attorneys’ fees, court costs and disbursements, if any. Seller
expressly agrees that if Seller receives any amounts after the Closing Date
which are attributable, in whole or in part, to any period after the Closing
Date, Seller shall remit to Purchaser that portion of the monies so received
by
Seller to which Purchaser is entitled within ten Business Days after receipt
thereof. With respect to Unbilled Tenant Receivables, Purchaser
covenants and agrees to (A) xxxx the same when billable and use
commercially reasonable efforts to collect the same, and (B) cooperate with
Seller to determine the correct amount of operating expenses and/or taxes
due. The provisions of this Section 8.1.3(a) shall survive the Closing for a
period of one (1) year.
(b) Without
limiting the generality of the requirements of Section 8.1.3(a) above, if the final reconciliation
or determination of operating expenses, electricity expenses and/or ad valorem
taxes and assessments due under the Leases shows that a net amount is owed
by
Seller to Purchaser, said amount shall be paid by Seller to Purchaser within
ten
(10) Business Days of such final determination under the Leases. If
the final determination of operating expenses, electricity expenses and/or
ad
valorem taxes and assessments due under the Leases shows that a net amount
is
owed by Purchaser to Seller, Purchaser shall, within ten (10) Business Days
of
such final determination, remit said amount to Seller. Purchaser
agrees to receive and hold any monies received on account of such past due
operating expenses, electricity expenses and/or ad valorem taxes and assessments
in trust for Seller and to pay same promptly to Seller as
aforesaid. For purposes of the foregoing prorations, estimated
payments of operating expenses, electricity expenses and ad valorem taxes and
assessments made by Tenants during the respective periods of ownership of the
Property by Seller and Purchaser shall be compared with the actual operating
expenses, electricity expenses and ad valorem taxes and assessments incurred
during or allocable to the respective periods of ownership of the Property
by
Seller and Purchaser (i.e., such items and estimated payments thereof by Tenants
shall be matched to the period when they were incurred). The
provisions of this Section 8.1.3(b)
shall survive the Closing for a period of one (1) year.
(c) Xxxxx
Lord Bissell & Liddell LLP (f/k/a Xxxxx Xxxxxxx & Xxxx, PLLC)
(“Xxxxx Lord”) has exercised its option to terminate its
Lease as to the 25th floor by
written
notice to Seller pursuant to the terms of such Lease, and as result thereof,
a
termination fee (the “Xxxxx Lord Termination Fee”) is
now due by Xxxxx Lord to Seller, as landlord. If Seller has not
received full payment of the Xxxxx Lord Termination Fee by Closing, Purchaser
agrees to use commercially reasonable efforts to collect the Xxxxx Lord
Termination Fee and shall pay 50% of any portion thereof which is actually
collected (less 50% of any reasonable collection costs incurred by Purchaser)
to
Seller when, as and if collected, which agreement of Purchaser shall survive
the
Closing for a period of one (1) year. If Xxxxx Lord disputes its
obligation to pay the Xxxxx Lord Termination Fee or refers to such dispute
or
its position with respect thereto in its Tenant Estoppel, then for purposes
of
Section 6.4, any such reference therein
to such dispute shall not, in and of itself, without regard to any other
statements, assertions or references therein, cause such Tenant Estoppel
Certificate to constitute an unacceptable Tenant Estoppel.
8.2 Leasing
Costs. As used herein, the term “Leasing
Costs” shall mean all leasing commissions, costs for tenant
improvements, lease buyout costs, moving allowances, design allowances, legal
fees and other costs, expenses and allowances (including free rental, reduced
rental, rental abatement periods and fees) incurred in order to induce a tenant
to enter into a Lease or Lease renewal or extension or to induce a licensee
to
enter into a License Agreement. At Closing, Seller shall provide
Purchaser with a credit equal to the amount of those Leasing Costs described
in
Exhibit I (less the amount of
$1,100,000.00) to the extent not paid by Seller prior to Closing (provided
that
the portion of such credit attributable to free rental, reduced rental or rental
abatement shall be deposited into the Master Lease Escrow and applied as
additional rent under the Master Lease), and Purchaser shall assume all of
Seller’s obligations to pay and discharge such unpaid Leasing Costs, which
obligation of Purchaser shall survive the Closing. Seller hereby
agrees that any payments of any Leasing Costs made by Seller prior to Closing
will be made only in accordance with schedules and requirements set forth in
the
Leases and applicable commission agreements. Purchaser shall be
responsible for the payment of all other Leasing Costs, whether coming due
and
payable before of after Closing, including, without limitation, Leasing Costs
payable with respect to any option to renew or option to expand that has not
been exercised prior to the Effective Date, and Leasing Costs incurred with
respect to Leases and License Agreements and renewals and extensions thereof
executed by Seller subsequent to the Effective Date to the extent permitted
by
this Agreement. If, as of the Closing Date, Seller shall have paid
any Leasing Costs for which Purchaser is responsible pursuant to the foregoing
provisions, Purchaser shall reimburse Seller therefor at
Closing. Except as expressly provided in this Section 8.2, Purchaser shall bear the economic
burden of all free rental, reduced rental, rental abatement periods and fees
to
which any tenants under the Leases are entitled from and after the Closing
Date.
8.3 Closing
Costs. Closing costs shall be allocated between Seller
and Purchaser in accordance with Section 1.2.
8.4 Final
Adjustment After Closing. If final bills are not
available or cannot be issued prior to Closing for any item being prorated
under
Section 8.1, then Purchaser and Seller
agree adjust the proration of such items as soon as reasonably possible after
the Closing when such bills are available. Payments due in connection with
the
final adjustment shall be due within thirty (30) days of written
notice. All such rights and obligations shall survive the Closing;
provided, that all prorations will be final within two hundred forty (240)
days
after Closing.
8.5 Tenant
Deposits; Letters of Credit. All tenant and licensee
security deposits required under the Leases or License Agreements and not
applied by Seller (and interest thereon if required by law or contract) shall
be
transferred or credited to Purchaser at Closing. If applicable, with
respect to any security deposits under the Leases that are letters of credit,
Seller, at Seller’s cost and expense (unless the terms of the Lease in question
require the tenant to pay such costs), shall, regardless of whether the same
are
held by Seller (or by Seller’s mortgagee) (a) deliver to Purchaser at the
Closing such letters of credit, (b) execute and deliver such other
instruments as the issuers of such letters of credit shall reasonably require
to
transfer or assign such letters of credit to Purchaser, and (c) cooperate
with Purchaser to change the named beneficiary under such letters of credit
to
Purchaser. As of the Closing, Purchaser shall assume Seller’s
obligations related to tenant and licensee security deposits, but only to the
extent they are credited or transferred to Purchaser.
8.6 Commissions. Seller
shall be responsible to Broker for a real estate sales commission at Closing
(but only in the event of a Closing in strict accordance with this Agreement)
in
accordance with a separate agreement between Seller and
Broker. Broker may share its commission with any other licensed
broker involved in this transaction, but the payment of the commission by Seller
to Broker shall fully satisfy any obligations of Seller to pay a commission
hereunder. Under no circumstances shall Seller owe a commission or
other compensation directly to any other broker, agent or person. Any
cooperating broker shall not be an affiliate, subsidiary or related in any
way
to Purchaser. Other than as stated above in this Section 8.6, Seller and Purchaser each represent
and warrant to the other that no real estate brokerage commission is payable
to
any person or entity in connection with the transaction contemplated hereby,
and
each agrees to and does hereby indemnify and hold the other harmless against
the
payment of any commission to any other person or entity claiming by, through
or
under Seller or Purchaser, as applicable. This indemnification shall
extend to any and all claims, liabilities, costs and expenses (including
reasonable attorneys’ fees and litigation costs) arising as a result of such
claims and shall survive the Closing.
8.7 Xxxxx
Lord Electrical Charge Dispute. Xxxxx Lord, as tenant,
has notified Seller, as landlord, by letter dated May 22, 2007, that Xxxxx
Lord
disputes its obligation to pay submetered electrical charges and has demanded
a
refund of alleged electrical overcharges (the “Xxxxx Lord Electrical
Charge Dispute”). Notwithstanding anything herein to the
contrary, except as otherwise provided below or in the Assignment, Seller shall
have no obligation hereunder or under any Closing document, including, without
limitation, the Assignment, for the Xxxxx Lord Electrical Charge Dispute or
any
loss, cost, expense or claim suffered, incurred or made against Purchaser by
reason thereof. At Closing, Purchaser shall assume all obligations of
Seller, as landlord under the Xxxxx Lord Lease, to pay Xxxxx Lord any amount
due
to Xxxxx Lord with respect to the Xxxxx Lord Electrical Charge Dispute, other
than amounts, if any, due to Xxxxx Lord for overpayments of submetered
electrical charges under the Xxxxx Lord Lease for any period prior to the
Closing Date that exceed, in the aggregate, $138,100.00 (for which Seller shall
remain responsible), and the Assignment shall so provide. If Xxxxx
Lord includes or refers to the Xxxxx Lord Electrical Charge Dispute in its
Tenant Estoppel, then for purposes of Section 6.4, any such reference therein to such
dispute shall not, in and of itself, without regard to any other statements,
assertions or references therein, cause such Tenant Estoppel Certificate to
constitute an unacceptable Tenant Estoppel.
ARTICLE
9
REPRESENTATIONS
AND WARRANTIES
9.1 Seller’s
Representations and Warranties. Seller represents and
warrants to Purchaser that:
9.1.1 Organization
and Authority. Seller has been duly organized and is
validly existing as a Texas limited partnership. Seller has the full
right and authority and has obtained any and all consents required to enter
into
this Agreement and to consummate or cause to be consummated the transactions
contemplated hereby. This Agreement has been, and all of the
documents to be delivered by Seller at the Closing will be, authorized and
executed and constitute, or will constitute, as appropriate, the valid and
binding obligation of Seller, enforceable in accordance with their
terms.
9.1.2 Conflicts
and Pending Actions. There is no agreement to which
Seller is a party or, to Seller’s knowledge, that is binding on Seller which is
in conflict with this Agreement. As of the Effective Date, except as
set forth on Schedule 9.1.2, (i) Seller has not received any written notice
of
any pending action or proceeding and, (ii) to Seller’s knowledge, there is no
action or proceeding threatened, against the Property or against Seller arising
out of the ownership or management of the Property.
9.1.3 Tenant
Leases. As of the Effective Date, Exhibit G lists all tenants
of the
Property. As of the Effective Date, except as provided in
Section 6.1.5, the costs set forth
on Exhibit I are the only Leasing
Costs currently outstanding and currently payable by the landlord under the
Leases. Copies of all Leases in effect as of the Effective Date (the
“Existing Leases”) (including all amendments thereto and
guaranties thereof) furnished by Seller to Purchaser under Section 4.1 or made available to Purchaser for
review under Section 4.2 are all
Existing Leases (including all amendments thereto) within Seller’s possession
and relied upon by Seller for its operations and leasing of the
Property. To Seller’s knowledge, as of the Effective Date (i) the
Existing Leases are presently in full force and effect without any default
thereunder by the applicable tenant except as set forth on Schedule 9.1.3;
(ii) no tenant has prepaid rent by more than one month in advance; and (iii)
except as set forth on Exhibit I, all tenant improvements that Seller, as
landlord, is obligated to complete, prior to the Effective Date pursuant to
any
Existing Lease, have been completed and accepted by the applicable
tenant. Except as set forth on Schedule 9.1.3, no tenant has
notified Seller, as landlord, in writing, of any default by Seller pursuant
to
an Existing Lease that remains uncured. If any Tenant Estoppel
delivered to Purchaser with respect to any Lease contains any statement of
fact,
information or other matter that is inconsistent with the matters stated in
Seller’s representations in this Section 9.1.3 and such inconsistency is
satisfactory to Purchaser in its sole discretion, or otherwise is expressly
permitted by this Agreement, the Tenant Estoppel shall control and Seller shall
have no liability for any claim based upon a breach of representation regarding
such statement of fact, information or other matter contained in the Tenant
Estoppel.
9.1.4 Service
Contracts and License Agreements. To Seller’s knowledge,
the Service Contracts and License Agreements to be delivered to Purchaser
pursuant to this Agreement will be correct and complete in all material respects
as of the date of its delivery. Seller is not party to any service
contracts, management contracts or other agreements that are binding upon the
Property after Closing other than the Service Contracts and License Agreements
so delivered to Purchaser hereunder.
9.1.5 Notices
from Governmental Authorities. Seller has not received
from any governmental authority written notice of any violation of any laws
applicable (or alleged to be applicable) to the Property, or any part thereof,
that has not been corrected, except as may be reflected by the Property
Documents or otherwise disclosed in writing to Purchaser.
9.1.6 Condemnation. Seller
has received no written notice of any pending condemnation or other governmental
taking proceedings affecting all or any part of the Property, and to Seller’s
knowledge, no condemnation or other governmental taking proceedings affecting
all or any part of the Property has been threatened.
9.1.7 Environmental
Matters. Except as may reflected in the Property
Documents or in any environmental report or assessment obtained by Purchaser,
Seller has not received any written notification from any governmental authority
or any other third party that (a) all or some portion of the Property
violates any Environmental Laws (as hereinafter defined); or (b) any
Hazardous Substances (as hereinafter defined) have been stored or generated
at,
released or discharged from or are present upon the Property, except in the
ordinary course of business and in compliance with all Environmental
Laws. As used herein, “Environmental Laws”
shall mean CERCLA (as hereinafter defined) and all
other federal, state and
local environmental laws, rules, statutes, directives, binding written
interpretations, binding written policies, ordinances and regulations issued
by
any governmental authority and in effect as of the Effective Date with respect
to or which otherwise pertain to or affect the Property, or any portion thereof,
the use, ownership, occupancy or operation of the Property, or any portion
thereof, or any owner of the Property, and as same have been amended, modified
or supplemented from time to time prior to the date of this Agreement, including
but not limited to the Hazardous Substances Transportation Act (49 U.S.C. § 1802
et seq.), RCRA, the Water Pollution Control Act (33 U.S.C. § 1251 et seq.), the
Safe Drinking Water Act (42 U.S.C. § 300f et seq.), the Clean Air Act (42 U.S.C.
§ 7401 et seq.), the Solid Waste Disposal Act (42 U.S.C. § 6901 et seq.), the
Toxic Substances Control Act (15 U.S.C. § 2601 et seq.), the Emergency Planning
and Community Right-to-Know Act of 1986 (42 U.S.C. § 11001 et seq.), the Radon
and Indoor Air Quality Research Act (42 U.S.C. § 7401 note, et seq.), XXXX,
comparable state and local laws, and any and all rules and regulations which
have become effective prior to the date of this Agreement under any and all
of
the aforementioned laws. To Seller’s knowledge, Seller has delivered
or made available to Purchaser copies of all environmental reports, tests,
evaluations, studies and assessments (including any available Phase I or Phase
II environmental site assessments), and any correspondence relating to
environmental matters, with respect to the Property, to the extent in each
case
in the possession or control of Seller or its property manager.
9.1.8 Bankruptcy
Matters. Seller has not made a general assignment for
the benefit of creditors, filed any voluntary petition in bankruptcy or suffered
the filing of an involuntary petition by its creditors, suffered the appointment
of a receiver to take possession of substantially all of its assets, suffered
the attachment or other judicial seizure of substantially all of its assets,
admitted its inability to pay its debts as they come due, or made an offer
of
settlement, extension or composition to its creditors generally.
9.1.9 Brokers. Seller
has delivered or made available as part of the Property Documents true and
complete copies of any and all listing agreements, brokerage agreements, leasing
agreements or other comparable agreements (collectively, “Brokerage
Agreements”) into which Seller has entered in connection with the
Property, and pursuant to which a leasing commission, finder’s fee or other
amount may be payable subsequent to Closing.
9.1.10 Employees. Seller
has no employees at the Property.
9.1.11 ERISA. Seller
is not a “governmental plan” within the meaning of section 3(32) of the Employee
Retirement Income Security Act of 1974, as amended, and the execution of this
Agreement and the sale of the Property by Seller is not, as a result of the
structure and ownership of Seller, subject to state statutes regulating
investments of and fiduciary obligations with respect to governmental
plans.
9.1.12 Prohibited
Persons and Transactions. Seller represents and warrants
to Purchaser that Seller is currently in compliance with and shall at all times
during the term of this Agreement (including any extension thereof) remain
in
compliance with the regulations of the Office of Foreign Asset Control
(“OFAC”) of the Department of the Treasury (including
those named on OFAC’s Specially Designated and Blocked Persons List) and any
statute, executive order (including the September 24, 2001, Executive Order
Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten
to Commit, or Support Terrorism), or other governmental action relating
thereto.
9.2 Purchaser’s
Representations and Warranties. Purchaser represents and
warrants to Seller that:
9.2.1 Organization
and Authority. Purchaser has been duly organized and is
validly existing as a limited partnership in good standing in the State of
Delaware and is (or prior to Closing will be) qualified to do business in the
state in which the Real Property is located. Purchaser has the full
right and authority and has obtained any and all consents required to enter
into
this Agreement and to consummate or cause to be consummated the transactions
contemplated hereby. This Agreement has been, and all of the
documents to be delivered by Purchaser at the Closing will be, authorized and
properly executed and constitute, or will constitute, as appropriate, the valid
and binding obligation of Purchaser, enforceable in accordance with their
terms.
9.2.2 Conflicts
and Pending Action. There is no agreement to which
Purchaser is a party or to Purchaser’s knowledge binding on Purchaser which is
in conflict with this Agreement. There is no action or proceeding
pending or, to Purchaser’s knowledge, threatened against Purchaser which
challenges or impairs Purchaser’s ability to execute or perform its obligations
under this Agreement.
9.2.3 Prohibited
Persons and Transactions. Purchaser represents and
warrants to Seller that Purchaser is currently in compliance with and shall
at
all times during the term of this Agreement (including any extension thereof)
remain in compliance with the regulations of OFAC (including those named on
OFAC’s Specially Designated and Blocked Persons List) and any statute, executive
order (including the September 24, 2001, Executive Order Blocking Property
and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or
Support Terrorism), or other governmental action relating thereto.
9.3 Knowledge
Defined. As used herein, terms such as “to
Seller’s knowledge,” “to the best of Seller’s
knowledge” or like phrases mean the actual present and conscious
awareness or knowledge of Xxx X. Xxxxxxx, a manager of Seller’s general partner,
Xxxxxxx X. XxXxxx, a manager of Seller’s general partner, and Xxxx
Xxxxxxxxx, the individual representative of Seller’s property manager for the
Property with primary responsibility for such property management account
(collectively, “Seller’s Representatives”), without any
duty of inquiry or investigation; provided that so qualifying Seller’s knowledge
shall in no event give rise to any personal liability on the part of Seller’s
Representatives, or any of them, or any other partner, member, officer or
employee of Seller, on account of any breach of any representation or warranty
made by Seller herein. Said terms do not include constructive
knowledge, imputed knowledge, or knowledge Seller or such persons do not have
but could have obtained through further investigation or inquiry. No
broker, agent, or party other than Seller is authorized to make any
representation or warranty for or on behalf of Seller.
9.4 Survival
of Representations and Warranties. The representations
and warranties set forth in this Article
9 are made as of the Effective Date and, except as provided in
Sections 7.2.1(a) and 7.2.2(a),
are remade as of the Closing Date
shall not be deemed to be merged into or waived by the instruments of Closing,
but shall survive the Closing for a period of nine months (the
“Survival Period”). Each party shall have the
right to bring an action against the other on the breach of a representation
or
warranty hereunder or in the documents delivered by Seller at the Closing,
but
only on the following conditions: (1) the party bringing the action
for breach first learns of the breach after Closing and gives written notice
of
such breach to the other party before the end of the Survival Period and files
such action on or before the first day following the second anniversary of
the
Closing Date, and (2) neither party shall have the right to bring a cause of
action for a breach of a representation or warranty unless the damage to such
party on account of such breach (individually or when combined with damages
from
other breaches) equals or exceeds $100,000.00, in which the full amount of
such
claims shall be actionable (but not in excess of the Cap defined
below). Neither party shall have any liability after Closing for the
breach of a representation or warranty hereunder of which the other party hereto
had knowledge as of Closing. Notwithstanding any other provision of
this Agreement, any agreement contemplated by this Agreement, or any rights
which Purchaser might otherwise have at law, equity, or by statute, whether
based on contract or some other claim, Purchaser agrees that any liability
of
Seller to Purchaser for the alleged breach of any or all of Seller’s
representations or warranties set forth in this Agreement will be limited to
$5,000,000.00 (the “Cap”). The provisions of
this Section 9.4 shall survive the
Closing. Any breach of a representation or warranty that occurs prior
to Closing shall constitute the non-satisfaction of the Closing Conditions
set
forth in Section 7.2.1(a) or 7.2.2(a),
as applicable, and shall be
governed exclusively by Section 7.2.3.
ARTICLE
10
DEFAULT
AND REMEDIES
10.1 Seller’s
Remedies. If Purchaser fails to consummate the purchase
of the Property pursuant to this Agreement for any reason except failure by
Seller to perform hereunder or failure of a condition precedent to Purchaser’s
obligations hereunder, Seller shall be entitled, as its sole and exclusive
remedy (except for the right to pursue all legal and equitable remedies with
respect to the indemnities expressly provided in Sections 4.11, and 8.6,
and the right to receive attorneys’
fees and other costs in accordance with Sections 10.3 and 10.4
hereof), to terminate this Agreement
and recover the Xxxxxxx Money as liquidated damages and not as penalty, in
full
satisfaction of claims against Purchaser hereunder. Seller and
Purchaser agree that Seller’s damages resulting from Purchaser’s default are
difficult, if not impossible, to determine and the Xxxxxxx Money is a fair
estimate of those damages which has been agreed to in an effort to cause the
amount of such damages to be certain. If Closing is consummated,
Seller shall have all remedies available at law or in equity in the event
Purchaser fails to perform any obligation of Purchaser performable after the
Closing under this Agreement. IN NO EVENT SHALL PURCHASER’S
DIRECT OR INDIRECT PARTNERS, SHAREHOLDERS, OWNERS OR AFFILIATES, ANY OFFICER,
DIRECTOR, EMPLOYEE OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING
PERSON THEREOF HAVE ANY LIABILITY FOR ANY CLAIM, CAUSE OF ACTION OR OTHER
LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROPERTY, WHETHER
BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY OR
OTHERWISE.
10.2 Purchaser’s
Remedies. If Seller fails to consummate the sale of the
Property pursuant to this Agreement or materially breaches any of its covenants
in Section 6.1 at or prior to Closing
for any reason except failure by Purchaser to perform hereunder or failure
of a
condition precedent to Seller’s obligations hereunder, and such default or
breach is not cured by the earlier of the third (3rd) Business Day after written
notice thereof from Purchaser or the Closing Date (Purchaser hereby agreeing
to
give such written notice to Seller within one Business Day after Purchaser
first
learns of any such default or breach by Seller, except no notice or cure period
shall apply if Seller fails to consummate the sale of the Property hereunder),
Purchaser shall elect, as its sole remedy, either to (a) terminate this
Agreement by giving Seller timely written notice of such election prior to
or at
Closing and recover the Xxxxxxx Money, (b) enforce specific performance to
consummate the sale of the Property hereunder, or (c) waive said failure or
breach and proceed to Closing without any reduction in the Purchase Price;
provided, however, in the event (1) such termination is due to Seller’s
willful breach or default, Purchaser shall be entitled to recover from Seller
Purchaser’s Diligence Costs, or (2) specific performance is not available
because Seller has conveyed the Property to another party, or Seller has
voluntarily encumbered the Property after the Effective Date with a mortgage,
deed of trust or financing lien in violation of this Agreement that Seller
does
not cause to be released at Closing, or Seller has willfully amended, modified,
waived its rights under or terminated any Lease in violation of this Agreement
with the intent to frustrate Closing, then Purchaser may pursue any and all
remedies available at law or in equity, including the recovery of its Diligence
Costs. In no event shall Seller be liable for any consequential, punitive or
special damages under this Agreement. Notwithstanding anything herein
to the contrary, Purchaser shall be deemed to have elected to terminate this
Agreement if Purchaser fails to deliver to Seller written notice of its intent
to file a claim or assert a cause of action for specific performance against
Seller on or before ten Business Days following the scheduled Closing Date
or,
having given such notice, fails to file a lawsuit asserting such claim or cause
of action in the county in which the Property is located within two months
following the scheduled Closing Date. If Closing is consummated,
Purchaser shall have all remedies available at law or in equity in the event
Seller fails to perform any obligation of Seller performable after the Closing
under this Agreement. IN NO EVENT SHALL SELLER’S DIRECT OR INDIRECT
PARTNERS, SHAREHOLDERS, OWNERS OR AFFILIATES, ANY OFFICER, DIRECTOR, EMPLOYEE
OR
AGENT OF THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE
ANY
LIABILITY FOR ANY CLAIM, CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF
OR
RELATING TO THIS AGREEMENT OR THE PROPERTY, WHETHER BASED ON CONTRACT, COMMON
LAW, STATUTE, EQUITY OR OTHERWISE. As used herein, the term
“Diligence Costs” means an amount equal to the lesser of
(i) $200,000.00 or (ii) the actual reasonable out-of-pocket expenses incurred
by
Purchaser and paid to (A) Purchaser’s attorneys in connection with the
negotiation of this Agreement and (B) to Purchaser’s attorneys and unrelated and
unaffiliated third party consultants, contractors, suppliers or other third
parties in connection with the performance of examinations, inspections and/or
investigations pursuant to Sections 4.4
and 4.5 or determining the feasibility
of Purchaser’s acquisition of the Property pursuant to this
Agreement.
10.3 Attorneys’
Fees. In the event either party hereto employs an
attorney in connection with claims by one party against the other
arising from the operation of this Agreement, the non-prevailing party shall
pay
the prevailing party all reasonable fees and expenses, including attorneys’
fees, incurred in connection with such claims.
10.4 Other
Expenses. If this Agreement is terminated due to the
default of a party, then the defaulting party shall pay any fees or charges
due
to Escrow Agent for holding the Xxxxxxx Money as well as any escrow cancellation
fees or charges and any fees or charges due to the Title Company for preparation
and/or cancellation of the Title Commitment.
ARTICLE
11
DISCLAIMERS
AND RELEASE
11.1 Disclaimers
By Seller. Except as expressly set forth in this
Agreement, it is understood and agreed that Seller and Seller’s agents or
employees have not at any time made and are not now making, and they
specifically disclaim, any warranties, representations or guaranties of any
kind
or character, express or implied, with respect to the Property, including,
but
not limited to, warranties, representations or guaranties as to (a) matters
of
title (other than Seller’s special warranty of title to be contained in the
Deed), (b) environmental matters relating to the Property or any portion
thereof, including, without limitation, the presence of Hazardous Materials
in,
on, under or in the vicinity of the Property, (c) geological conditions,
including, without limitation, subsidence, subsurface conditions, water table,
underground water reservoirs, limitations regarding the withdrawal of water,
and
geologic faults and the resulting damage of past and/or future faulting, (d)
whether, and to the extent to which the Property or any portion thereof is
affected by any stream (surface or underground), body of water, wetlands, flood
prone area, flood plain, floodway or special flood hazard, (e) drainage, (f)
soil conditions, including the existence of instability, past soil repairs,
soil
additions or conditions of soil fill, or susceptibility to landslides, or the
sufficiency of any undershoring, (g) the presence of endangered species or
any
environmentally sensitive or protected areas, (h) zoning or building
entitlements to which the Property or any portion thereof may be subject, (i)
the availability of any utilities to the Property or any portion thereof
including, without limitation, water, sewage, gas and electric, (j) usages
of
adjoining property, (k) access to the Property or any portion thereof, (l)
the
value, compliance with the plans and specifications, size, location, age, use,
design, quality, description, suitability, structural integrity, operation,
title to, or physical or financial condition of the Property or any portion
thereof, or any income, expenses, charges, liens, encumbrances, rights or claims
on or affecting or pertaining to the Property or any part thereof, (m) the
condition or use of the Property or compliance of the Property with any or
all
past, present or future federal, state or local ordinances, rules, regulations
or laws, building, fire or zoning ordinances, codes or other similar laws,
(n)
the existence or non-existence of underground storage tanks, surface
impoundments, or landfills, (o) any other matter affecting the stability and
integrity of the Property, (p) the potential for further development of the
Property, (q) the merchantability of the Property or fitness of the Property
for
any particular purpose, (r) the truth, accuracy or completeness of the Property
Documents, (s) tax consequences, or (t) any other matter or thing with respect
to the Property.
11.2 Sale
“As Is, Where Is”. Purchaser acknowledges and agrees
that upon Closing, Seller shall sell and convey to Purchaser and Purchaser
shall
accept the Property “AS-IS, WHERE-IS, WITH ALL FAULTS,” except
to the extent expressly provided otherwise in this Agreement and any document
executed by Seller and delivered to Purchaser at Closing. Except as
expressly set forth in this Agreement, Purchaser has not relied and will not
rely on, and Seller has not made and is not liable for or bound by, any express
or implied warranties, guarantees, statements, representations or information
pertaining to the Property or relating thereto (including specifically, without
limitation, Property information packages distributed with respect to the
Property) made or furnished by Seller, or any property manager, real estate
broker, agent or third party representing or purporting to represent Seller,
to
whomever made or given, directly or indirectly, orally or in
writing. Purchaser represents that it is a knowledgeable, experienced
and sophisticated purchaser of real estate and that, except as expressly set
forth in this Agreement, it is relying solely on its own expertise and that
of
Purchaser’s consultants in purchasing the Property and shall make an independent
verification of the accuracy of any documents and information provided by
Seller. Purchaser will conduct such inspections and investigations of
the Property as Purchaser deems necessary, including, but not limited to, the
physical and environmental conditions thereof, and shall rely upon
same. By failing to terminate this Agreement prior to the expiration
of the Inspection Period, Purchaser acknowledges that Seller has afforded
Purchaser a full opportunity to conduct such investigations of the Property
as
Purchaser deemed necessary to satisfy itself as to the condition of the Property
and the existence or non-existence or curative action to be taken with respect
to any Hazardous Materials on or discharged from the Property, and will rely
solely upon same and not upon any information provided by or on behalf of Seller
or its agents or employees with respect thereto, other than such
representations, warranties and covenants of Seller as are expressly set forth
in this Agreement. Upon Closing, Purchaser shall assume the risk that
adverse matters, including, but not limited to, adverse physical or construction
defects or adverse environmental, health or safety conditions, may not have
been
revealed by Purchaser’s inspections and investigations. Purchaser
hereby represents and warrants to Seller that: (a) Purchaser is
represented by legal counsel in connection with the transaction contemplated
by
this Agreement; and (b) Purchaser is purchasing the Property for business,
commercial, investment or other similar purpose and not for use as Purchaser’s
residence. Purchaser waives any and all rights or remedies it may
have or be entitled to, deriving from disparity in size or from any significant
disparate bargaining position in relation to Seller.
11.3 Seller
Released from Liability. Purchaser acknowledges that it
will have the opportunity to inspect the Property during the Inspection Period,
and during such period, observe its physical characteristics and existing
conditions and the opportunity to conduct such investigation and study on and
of
the Property and adjacent areas as Purchaser deems necessary, and Purchaser
hereby FOREVER RELEASES AND DISCHARGES Seller from all responsibility and
liability, including without limitation, liabilities and responsibilities for
the lessor’s obligations under the Leases relating to the physical,
environmental or legal compliance status of the Property, whether arising before
or after the Effective Date, and liabilities under the Comprehensive
Environmental Response, Compensation and Liability Act Of 1980 (42 U.S.C.
Sections 9601 et seq.), as amended (“CERCLA”), regarding
the condition, valuation, salability or utility of the Property, or its
suitability for any purpose whatsoever (including, but not limited to, with
respect to the presence in the soil, air, structures and surface and subsurface
waters, of Hazardous Materials or other materials or substances that have been
or may in the future be determined to be toxic, hazardous, undesirable or
subject to regulation and that may need to be specially treated, handled and/or
removed from the Property under current or future federal, state and local
laws,
regulations or guidelines, and any structural and geologic conditions,
subsurface soil and water conditions and solid and hazardous waste and Hazardous
Materials on, under, adjacent to or otherwise affecting the
Property). Purchaser further hereby WAIVES (and by Closing this
transaction will be deemed to have WAIVED) any and all objections and complaints
(including, but not limited to, federal, state and local statutory and common
law based actions, and any private right of action under any federal, state
or
local laws, regulations or guidelines to which the Property is or may be
subject, including, but not limited to, CERCLA) concerning the physical
characteristics and any existing conditions of the Property, including, without
limitation, the lessor’s obligations under the Leases relating to the physical,
environmental or legal compliance status of the Property, whether arising before
or after the Effective Date. Purchaser further hereby assumes the
risk of changes in applicable laws and regulations relating to past, present
and
future environmental conditions on the Property and the risk that adverse
physical characteristics and conditions, including, without limitation, the
presence of Hazardous Materials or other contaminants, may not have been
revealed by its investigation. Notwithstanding the foregoing, the
waivers, releases and other matters set forth in this Section 11.3 or elsewhere in this Agreement shall
not apply to any claims made by third parties (including governmental
authorities) against Purchaser or its successors, assigns, agents or affiliates
with respect to Hazardous Materials in, on, under, above, adjacent to or
otherwise affecting the Property prior to Closing (except to the extent
Purchaser is responsible for same in accordance with Sections 4.4, 4.10
and/or 4.11 hereof, in each case, for purposes
of
this proviso, without regard to any limitation on the survival of such
Purchaser’s responsibilities stated therein or herein), it being agreed that
Purchaser is not waiving or releasing but is instead specifically reserving
and
retaining, all rights of contribution and subrogation with respect to such
claims.
11.4 “Hazardous
Materials” Defined. For purposes hereof,
“Hazardous Materials” means “Hazardous Material,”
“Hazardous Substance,” “Pollutant or Contaminant,” and “Petroleum” and “Natural
Gas Liquids,” as those terms are defined or used in Section 101 of CERCLA, and
any other substances regulated because of their effect or potential effect
on
public health and the environment, including, without limitation, PCBs, lead
paint, asbestos, urea formaldehyde, radioactive materials, putrescible
materials, and infectious materials.
11.5 Survival. The
terms and conditions of this Article 11
shall expressly survive the Closing, not merge with the provisions of any
closing documents.
Purchaser
acknowledges and agrees that the disclaimers and other agreements set forth
herein are an integral part of this Agreement and that Seller would not have
agreed to sell the Property to Purchaser for the Purchase Price without the
disclaimers and other agreements set forth above.
ARTICLE
12
MISCELLANEOUS
12.1 Parties
Bound; Assignment. This Agreement, and the terms,
covenants, and conditions herein contained, shall inure to the benefit of and
be
binding upon the heirs, personal representatives, successors, and assigns of
each of the parties hereto. Purchaser may assign its rights under
this Agreement upon the following conditions: (a) the assignee of
Purchaser must be an entity controlling, controlled by, or under common control
with Purchaser, (b) all of the Xxxxxxx Money must have been delivered in
accordance herewith, (c) the assignee of Purchaser shall assume all obligations
of Purchaser hereunder, but Purchaser shall remain primarily liable for the
performance of Purchaser’s obligations, and (d) a copy of the fully executed
written assignment and assumption agreement shall be delivered to Seller at
least five days prior to Closing.
12.2 Headings. The
article, section, subsection, paragraph and/or other headings of this Agreement
are for convenience only and in no way limit or enlarge the scope or meaning
of
the language hereof.
12.3 Invalidity
and Waiver. If any portion of this Agreement is held
invalid or inoperative, then so far as is reasonable and possible the remainder
of this Agreement shall be deemed valid and operative, and, to the greatest
extent legally possible, effect shall be given to the intent manifested by
the
portion held invalid or inoperative. The failure by either party to
enforce against the other any term or provision of this Agreement shall not
be
deemed to be a waiver of such party’s right to enforce against the other party
the same or any other such term or provision in the future.
12.4 Governing
Law. This Agreement shall, in all respects, be governed,
construed, applied, and enforced in accordance with the law of the state in
which the Real Property is located.
12.5 Survival. The
provisions of this Agreement that contemplate performance after the Closing
and
the obligations of the parties not fully performed at the Closing (other than
any unfulfilled closing conditions which have been waived or deemed waived
by
the other party) shall survive the Closing and shall not be deemed to be merged
into or waived by the instruments of Closing.
12.6 Entirety
and Amendments. This Agreement embodies the entire
agreement between the parties and supersedes all prior agreements and
understandings relating to the Property. This Agreement may be
amended or supplemented only by an instrument in writing executed by the party
against whom enforcement is sought. All Exhibits hereto are
incorporated herein by this reference for all purposes.
12.7 Time. Time
is of the essence in the performance of this Agreement.
12.8 Confidentiality. Purchaser
shall make no public announcement or disclosure of any information related
to
this Agreement to outside brokers or third parties, before or after the Closing,
without the prior written specific consent of Seller; provided, however, that
Purchaser may make disclosure of this Agreement to its Permitted Outside Parties
as necessary to perform its obligations hereunder, as may be required under
laws
or regulations applicable to Purchaser or its affiliates, or otherwise as
permitted under Section 4.8.
12.9 No
Electronic Transactions. The parties hereby acknowledge
and agree, except as expressly provided in Sections 12.10 and 12.13,
this Agreement shall not be
executed, entered into, altered, amended or modified by electronic
means. Without limiting the generality of the foregoing, the parties
hereby agree the transactions contemplated by this Agreement shall not be
conducted by electronic means, except as specifically set forth in the “Notices”
section of this Agreement.
12.10 Notices. All
notices required or permitted hereunder shall be in writing and shall be served
on the parties at the addresses set forth in Section 1.3. Any such notices shall,
unless otherwise provided herein, be given or served (a) by depositing the
same
in the United States mail, postage paid, certified and addressed to the party
to
be notified, with return receipt requested, (b) by overnight delivery using
a
nationally recognized overnight courier, (c) by personal delivery, (d) by
facsimile transmission during normal business hours with a confirmation copy
delivered by another method permitted under this Section 12.10, or (e) by electronic mail addressed
to the electronic mail address set forth in Section 1.3 for the party to be notified with
a
confirmation copy delivered by another method permitted under this Section
12.10. Notice given in
accordance herewith for all permitted forms of notice other than by electronic
mail, shall be effective upon the earlier to occur of actual delivery to the
address of the addressee or refusal of receipt by the addressee (even if such
addressee refuses delivery thereof). Notice given by electronic mail
in accordance herewith shall be effective upon the entrance of such electronic
mail into the information processing system designated by the recipient’s
electronic mail address. Except for facsimile and electronic mail
notices as described above, no notice hereunder shall be effective if sent
or
delivered by electronic means. In no event shall this Agreement be
altered, amended or modified by electronic mail or electronic
record. A party’s address may be changed by written notice to the
other party; provided, however, that no notice of a change of address shall
be
effective until actual receipt of such notice. Copies of notices are
for informational purposes only, and a failure to give or receive copies of
any
notice shall not be deemed a failure to give notice. Notices given by
counsel to the Purchaser shall be deemed given by Purchaser and notices given
by
counsel to the Seller shall be deemed given by Seller.
12.11 Construction. The
parties acknowledge that the parties and their counsel have reviewed and revised
this Agreement and agree that the normal rule of construction - to the
effect that any ambiguities are to be resolved against the drafting party -
shall not be employed in the interpretation of this Agreement or any exhibits
or
amendments hereto.
12.12 Calculation
of Time Periods; Business Day. Unless otherwise
specified, in computing any period of time described herein, the day of the
act
or event after which the designated period of time begins to run is not to
be
included and the last day of the period so computed is to be included, unless
such last day is not a Business Day, in which event the period shall run until
the end of the next day that is a Business Day. The last day of any
period of time described herein shall be deemed to end at 5:00 p.m. local time
in the state in which the Real Property is located. As used herein,
the term “Business Day” means any day that is not a
Saturday, Sunday or legal holiday for national banks in the city in which the
Real Property is located.
12.13 Execution
in Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, and
all
of such counterparts shall constitute one Agreement. To facilitate
execution of this Agreement, the parties may execute and exchange by telephone
facsimile or e-mail PDF counterparts of the signature pages, provided that
executed originals thereof are forwarded to the other party on the same day
by
any of the delivery methods set forth in Section 12.9 other than facsimile or electronic
PDF. Signature pages may be detached from the counterparts and
attached to a single copy of this Agreement to physically form one
document.
12.14 No
Recordation. Without the prior written consent of
Seller, there shall be no recordation of either this Agreement or any memorandum
hereof, or any affidavit pertaining hereto, and any such recordation of this
Agreement or memorandum or affidavit by Purchaser without the prior written
consent of Seller shall constitute a default hereunder by Purchaser, whereupon
Seller shall have the remedies set forth in Section 10.1 hereof. In addition to any
such remedies, Purchaser shall be obligated to execute an instrument in
recordable form releasing this Agreement or memorandum or affidavit filed in
the
applicable Real Property Records, and Purchaser’s obligations pursuant to this
Section 12.14 shall survive any
termination of this Agreement as a surviving obligation.
12.15 Further
Assurances. In addition to the acts and deeds recited
herein and contemplated to be performed, executed and/or delivered by either
party at Closing, each party agrees to perform, execute and deliver, but without
any obligation to incur any additional liability or expense, on or after the
Closing any further deliveries and assurances as may be reasonably necessary
to
consummate the transactions contemplated hereby or to further perfect the
conveyance, transfer and assignment of the Property to Purchaser.
12.16 Discharge
of Obligations. The acceptance of the Deed by Purchaser
shall be deemed to be a full performance and discharge of every representation
and warranty made by Seller herein and every agreement and obligation on the
part of Seller to be performed pursuant to the provisions of this Agreement,
except those which are herein specifically stated to survive
Closing.
12.17 No
Third Party Beneficiary. The provisions of this
Agreement and of the documents to be executed and delivered at Closing are
and
will be for the benefit of Seller and Purchaser only and are not for the benefit
of any third party, and accordingly, no third party shall have the right to
enforce the provisions of this Agreement or of the documents to be executed
and
delivered at Closing.
12.18 Reporting
Person. Purchaser and Seller hereby designate the Title
Company as the “reporting person” pursuant to the provisions of Section 6045(e)
of the Internal Revenue Code of 1986, as amended.
12.19 Mandatory
Arbitration. The parties have agreed to submit disputes
to mandatory arbitration in accordance with the provisions of Exhibit H hereto and made a part
hereof for all purposes. Each of Seller and Purchaser waives the
right to commence an action in connection with this Agreement in any court
and
expressly agrees to be bound by the decision of the arbitrator determined in
Exhibit H. The waiver of
this Section 12.19 will not prevent
Seller or Purchaser from commencing an action in any court for the sole purposes
of enforcing the obligation of the other party to submit to binding arbitration
or the enforcement of an award granted by arbitration herein or as expressly
permitted by Section 10.1
hereof. The terms of this Section 12.19 shall survive (a) the termination
of
this Agreement, and (b) the Closing.
12.20 Cooperation
with Purchaser’s Auditors and SEC Filing
Requirements. Seller shall provide to Purchaser (at
Purchaser’s expense) copies of, or shall provide Purchaser access to, such
factual information as may be reasonably requested by Purchaser, and in the
possession or control of Seller, or its property manager or accountants, to
enable Purchaser’s auditor (Deloitte & Touche LLP or any successor auditor
selected by Purchaser) to conduct an audit of the income statements of the
Property for the year to date of the year in which the Closing occurs plus
up to
the three prior calendar years. Purchaser shall be responsible for
all out-of-pocket costs associated with this audit. Seller shall
cooperate (at no cost to Seller) with Purchaser’s auditor in the conduct of such
audit. In addition, Seller agrees to provide, if requested by such
auditor, historical financial statements for the Property, including income
and
balance sheet data for the Property, whether required before or after
Closing. Without limiting the foregoing, (a) Purchaser or its
designated independent or other auditor may audit Seller’s operating statements
of the Property, at Purchaser’s expense, and Seller shall provide such
documentation as Purchaser or its auditor may reasonably request in order to
complete such audit, and (b) Seller shall furnish to Purchaser such
financial and other information as may be reasonably required by Purchaser
or
any Affiliate of Purchaser to make any required filings with the Securities
and
Exchange Commission or other governmental authority; provided, however, that
the
foregoing obligations of Seller shall be limited to providing such information
or documentation as may be in the possession of, or reasonably obtainable by,
Seller, its property manager or accountants, at no material cost to Seller,
and
in the format that Seller (or its property manager or accountants) have
maintained such information.
12.21 Post-Closing
Escrow. Notwithstanding anything to the contrary
contained herein, Seller and Purchaser hereby agree that a portion of the
Purchase Price in an amount equal to $2,900,000.00 (which sum is herein referred
to as the “Post Closing Escrow”) shall be deposited with
Escrow Agent at Closing pursuant to an escrow agreement, the form of which
will
be agreed upon by Seller and Purchaser, each acting reasonably, prior to the
Closing (the “Post-Closing Escrow Agreement”), which
shall provide as follows:
12.21.1 Establishment. The
Post Closing Escrow shall be held by Escrow Agent in a separate interest-bearing
account pursuant to the terms of the Post-Closing Escrow Agreement, with all
interest earned thereon to become a part of the Post Closing Escrow for all
purposes.
12.21.2 Purpose. Disbursements
from the Post Closing Escrow shall be made in accordance with the terms of
the
Post-Closing Escrow Agreement to reimburse Purchaser only for (a) claims made
by
Purchaser in accordance with Section 9.4
for breaches of Seller’s representations or warranties under Section 9.1, (b) any direct damage, loss, cost
or
expense suffered by Purchaser as a result of adverse matters disclosed in a
Tenant Estoppel for which Seller elects to deliver a Seller Estoppel in lieu
thereof pursuant to Section 6.4 (subject
to the limitations set forth in Section 9.3 and 9.4)
or (c) any amounts due to Purchaser
pursuant to Article 8, in each case, as determined by a final, non-appealable
judgment of a court of competent jurisdiction or by mutual agreement of Seller
and Purchaser.
12.21.3 First
Seller Disbursement. If any amounts remain in the Post
Closing Escrow at the end of the Survival Period, Seller and Purchaser shall
cause such amounts (other than Survival Period Holdbacks, as defined below)
to
be promptly disbursed to Seller by Escrow Agent. As used herein,
“Survival Period Holdbacks” means amounts necessary to
satisfy unresolved claims properly made by Purchaser and of which Purchaser
has
given Seller written notice during the Survival Period for the matters in clause
(a), (b) and (c) of Section 12.21.2
above. The amount of any Survival Period Holdbacks shall continue to
be held as part of the Post Closing Escrow to pay the claims on which such
Survival Period Holdbacks are based.
12.21.4 Second
Seller Disbursement. If any amounts remain in the Post
Closing Escrow on the date (the “Outside Escrow Date”)
which is two (2) years and one (1) day after the Closing Date, Seller and
Purchaser shall cause such amounts (other than Final Holdbacks, as defined
below) to be promptly disbursed to Seller by Escrow Agent. As used
herein, “Final Holdbacks” means amounts necessary to satisfy:
(a) unresolved
claims by Purchaser for a breach under clause (a) or (b) of Section 12.21.2 above and for which a Survival
Period Holdback was retained in the Post Closing Escrow as of the end of the
Survival Period pursuant to Section 12.21.3 above and upon which Purchaser
filed an action against Seller on or before the Outside Escrow Date;
and
(b) unresolved
claims by Purchaser under clause (c) of Section 12.21.2 above for which a Survival Period
Holdback was retained in the Post Closing Escrow as of the end of the Survival
Period pursuant to Section 12.21.3
above.
The
amount of any Final Holdbacks shall continue to be held as part of the Post
Closing Escrow to pay the claims on which the Final Holdbacks are
based. Upon final resolution of each such claim, whether by court
action or settlement by mutual agreement of Seller and Purchaser, the amount
thereof shall be disbursed to the party entitled thereto.
12.21.5 Survival. The
provisions of this Section 12.21 shall
survive the Closing.
12.22 Xxxxx
Lord Escrow. Notwithstanding anything to the contrary
contained herein, Seller and Purchaser hereby agree that a portion of the
Purchase Price in an amount equal to $1,375,000.00 (which sum is herein referred
to as the “Xxxxx Lord Escrow”) shall be deposited with
Escrow Agent at Closing pursuant to an escrow agreement, the form of which
will
be agreed upon by Seller and Purchaser, each acting reasonably, prior to the
Closing Date (the “Xxxxx Lord Escrow Agreement”), which
shall provide as follows:
12.22.1 Establishment. The
Xxxxx Lord Escrow shall be held by Escrow Agent in a separate interest-bearing
account pursuant to the terms of the Xxxxx Lord Escrow Agreement, with all
interest earned thereon to become a part of the Xxxxx Lord Escrow for all
purposes.
12.22.2 Purpose. The
purpose of the Xxxxx Lord Escrow is to reimburse Purchaser pursuant to the
Xxxxx
Lord Escrow Agreement only to the extent Purchaser, as landlord under the Lease
with Xxxxx Lord (the “Xxxxx Lord Lease”), is required to
pay the 27th Floor Off-Site Space Payment to Xxxxx Lord as provided in Section
11 of Exhibit L to the Xxxxx Lord Lease. Capitalized terms
used in this Section 12.22 and not
otherwise defined herein shall have the meanings given to them in Exhibit
L to the Xxxxx Lord Lease.
12.22.3 Disbursements. The
Xxxxx Lord Escrow shall be disbursed in accordance with the following
provisions:
(a) If
Xxxxx
Lord does not exercise its 27th Floor Expansion Option on or before April 1,
2009, in accordance with the Xxxxx Lord Lease, then the entire Xxxxx Lord Escrow
shall be disbursed to Seller on April 3, 2009; provided, that if Xxxxx Lord
sooner agrees in writing to terminate its 27th Floor Expansion Option, then
the
entire Xxxxx Lord Escrow shall be disbursed to Seller on the second Business
Day
immediately following the date on which the 27th Floor Expansion Option is
terminated.
(b) If
(i)
Xxxxx Lord exercises its 27th Floor Expansion Option on or before April 1,
2009,
in accordance with the Xxxxx Lord Lease, and (ii) Alternate Space is not
available for Purchaser, as landlord, to lease to Xxxxx Lord as the Expansion
Space for its 27th Floor Expansion Option, but Xxxxx Lord does not lease
Off-Site Space before March 1, 2010, then the entire Xxxxx Lord Escrow shall
be
disbursed to Seller on March 3, 2010.
(c) To
the
extent Purchaser, as landlord under the Xxxxx Lord Lease, is required to pay
the
27th Floor Off-Site Space Payment to Xxxxx Lord as provided in Section 11 of
Exhibit L to the Xxxxx Lord Lease, such amount shall be disbursed to
Purchaser from the Xxxxx Lord Escrow and the balance, if any, of the Xxxxx
Lord
Escrow shall be disbursed to Seller, in each case on March 3, 2010, or on the
second Business Day after such earlier date as Purchaser is required to pay
the
27th Floor Off-Site Space Payment to Xxxxx Lord as provided in the Xxxxx Lord
Lease.
12.22.4 Availability
of Space for 27th Floor Expansion Option.
(a) Seller
and Purchaser acknowledge that the 27th Floor Expansion Space has been leased
and will not be available to be leased to Xxxxx Lord and that, if Xxxxx Lord
timely exercises its 27th Floor Expansion Option, Alternate Space may be
provided to Xxxxx Lord in accordance with the Xxxxx Lord
Lease. Purchaser shall use commercially reasonable efforts to provide
Alternate Space for lease to Xxxxx Lord should Xxxxx Lord timely exercise its
27th Floor Expansion Option; provided, that Purchaser shall not be required
to
make any payment or grant any economic concession to any tenant of the Building
to obtain the right to include such tenant’s space as Alternate
Space. Purchaser shall act reasonably and in good faith in its
efforts to provide Alternate Space with respect to the 27th Floor Expansion
Option and in dealing with Seller hereunder.
(b) Upon
request by Seller, Purchaser will consult with Seller and provide Seller with
such information as Seller may reasonably request regarding the availability
of
space in the Building that is or could become Alternate
Space. Seller, at its sole expense, may (but shall not be obligated
to) obtain the agreement of other tenants to waive any preferential or other
rights held by them with respect to space in the Building so that such space
can
be included as Alternate Space if Xxxxx Lord exercises its 27th Floor Expansion
Option.
12.22.5 Amendment
of Xxxxx Lord Lease. Except as provided below, without
the prior written consent of Seller (which consent may be given or withheld
in
Seller’s sole discretion), Purchaser shall not (i) amend Exhibit L to the
Xxxxx Lord Lease or (ii) otherwise amend the Xxxxx Lord Lease if such amendment
under this clause (ii) would increase or otherwise adversely affect Seller’s
rights or obligations hereunder or under the Xxxxx Lord Escrow Agreement;
provided, that Purchaser may amend the Xxxxx Lord Lease without Seller’s consent
to terminate the 27th Floor Expansion Option prior to the exercise
thereof.
12.22.6 Survival. The
provisions of this Section 12.22 shall
survive the Closing.
[SIGNATURE
PAGES AND EXHIBITS TO FOLLOW]
SIGNATURE
PAGE TO PURCHASE AND SALE AGREEMENT
BY
AND BETWEEN
2200
XXXX, X.X., AS SELLER,
AND
XXXXX
REIT 2200 XXXX XX, AS PURCHASER
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and
year written below.
|
Date
executed by Seller
October __,
2007
|
SELLER:
2200
XXXX, X.X., a Texas limited partnership
By:Stream
Acquisition XXXV, L.L.C., a Texas limited liability company, its
general
partner
By:
Name:
Title:
|
|
Date
executed by Purchaser
October __,
2007
|
PURCHASER:
XXXXX
REIT 0000 XXXX XXXXXX LP, a Delaware limited
partnership
By:Xxxxx
REIT 2200 Xxxx Avenue GP LLC, a Delaware limited liability company,
its
general partner
By:
Name:
Title:
|
JOINDER
BY ESCROW AGENT
Escrow
Agent has executed this Agreement in order to confirm that Escrow Agent has
received and shall hold the Xxxxxxx Money required to be deposited under this
Agreement and the interest earned thereto, in escrow, and shall disburse the
Xxxxxxx Money, and the interest earned thereon, pursuant to the provisions
of
this Agreement.
|
Date
executed by Escrow Agent
October __,
2007
|
CHICAGO
TITLE INSURANCE COMPANY
By:
Name:
Title:
|
LIST
OF EXHIBITS AND SCHEDULES
Exhibit
A - Legal
Description of Land
Exhibit
B - Special
Warranty Deed
Exhibit
C - Xxxx
of Sale, Assignment and Assumption of Leases and Contracts
Exhibit
D - FIRPTA
Certificate
Exhibit
E - Notice
to Tenants
Exhibit
F - Tenant
Estoppel Certificate
Exhibit
G - List
of Tenants
Exhibit
H - Mandatory
Arbitration
Exhibit
I - Leasing
Costs to be Paid by Seller or Credited to Purchaser
Exhibit
J - Additional
Due Diligence Materials
Exhibit
K - Forms
of Skybridge Estoppels
Exhibit
L - Terms
of Amendment to Lease with Stream Realty Partners, L.P.
Exhibit
M - Assignment
and Assumption of License (Ordinance No. 19516)
Exhibit
N - Assignment
and Assumption of License (Ordinance No. 19851)
Exhibit
O - Assignment
and Assumption of License (Ordinance No. 20029)
Schedule
9.1.2
Schedule
9.1.3
Purchase
and Sale Agreement – Chase Tower
1311923v.3
STR430/16009
EXHIBIT
A
LEGAL
DESCRIPTION OF LAND
TRACT
I: Fee Simple
BEING
a
tract of land situated in the X. XXXXXXX SURVEY, Abstract No. 495 and being
all
of XXX 0, XXXXX 000 of the 2200 XXXX ADDITION, an addition to the City of Dallas
as recorded in Volume 85018, Page 1062 of the Deed Records of Dallas County,
Texas (DRDCT) and being all of a tract of land conveyed to THE
CROW-EQUITABLE-NISSEI XXXX AVENUE DALLAS COMPANY as recorded in Volume 87122,
Page 2336 (DRDCT) and being more particularly described as follows;
BEGINNING
at a "X" cut found in concrete at the most southeasterly corner of XXX 0, XXXXX
A/256 of the ELEGANTE ADDITION, an addition to the City of Dallas as recorded
in
Volume 77199, Page 1896 (DRDCT) Certificate of Correction as recorded in
Volume77245, Page 2491 (DRDCT), said point being found in the northwesterly
Right-of-Way line of SAN JACINTO STREET (55' Right-of-Way);
THENCE
departing the southwesterly line of said XXX 0, XXXXX A/256 and along the
northwesterly Right-of-Way line of said XXX XXXXXXX XXXXXX Xxxxx 00 xxx 00
min
00 sec West a distance of 327.52 feet to a point for corner at a corner-clip
which a "X" cut set on the top of concrete curb for reference bears South 44
deg
58 min 37 sec East a distance of 10.60 feet;
THENCE
departing the northwesterly Right-of-Way line of said SAN JACINTO STREET and
along said corner-clip South 89 deg 31 min 45 sec West a distance of 14.26
feet
to a point for corner in the northeasterly Right-of-Way line of PEARL STREET
(100'Right-of-Way) which a "X" cut set on the top of curb for reference bears
South 44 deg06 min 45 sec West a distance of 10.74 feet;
THENCE
departing said corner-clip and along the northeasterly Right-of-Way line of
said
PEARL STREET as follows;
North
45
deg 56 min 30 sec West a distance of 193.62 feet to a 1/2 inch iron rod set
with
a red plastic cap stamped "W.A.I." for corner;
North
47
deg 42 min 11 sec West a distance of 146.69 feet to a point for the beginning
of
a corner-clip which a "X" cut set on the top of curb for reference bears South
42 deg 25 min 41 sec West a distance of 9.89 feet;
THENCE
departing the northeasterly Right-of-Way line of said PEARL STREET and along
said corner-clip North 01 deg 21 min 06 sec West a distance of 6.89 feet to
a
point for corner in the southeasterly Right-of-Way line of XXXX AVENUE (80'
Right-of-Way) which a "X" cut set on the top of curb for reference bears North
45 deg 00 min 43 sec West a distance of 11.34 feet;
THENCE
departing said corner-clip and along the southeasterly Right-of-Way line of
said
XXXX AVENUE North 45 deg 00 min 00 sec East a distance of 288.66 feet to a
"X"
cut found in concrete for the most southwesterly corner of said XXX 0, XXXXX
A/256;
THENCE
departing the southeasterly Right-of-Way line of said XXXX AVENUE and along
the
common line of said XXX 0, XXXXX 000 xxx XXX 0, XXXXX A/256 as
follows;
South
45
deg 24 min 34 sec East a distance of 170.02 feet to a 1/2 inch iron rod set
with
a red plastic cap stamped "W.A.I." for corner;
North
44
deg 48 min 53 sec East a distance of 52.69 feet to a 1/2 inch iron rod set
with
a red plastic cap stamped "W.A.I." for corner;
South
45
deg 08 min 39 sec East a distance of 185.26 feet to the POINT OF
BEGINNING;
CONTAINING
within these metes and bounds 2.571 acres or 112,004 square feet of land more
or
less. Bearings contained within this field note description are based upon
anon
the ground survey performed in the field on the 30th day of March 2006 utilizing
the bearings as found on the Plat of 2200 XXXX ADDITION, an addition
to the City of Dallas as recorded in Volume 85018, Page 1062
(DRDCT).
TRACT
II: Subsurface Estate
BEING
all
of the subsurface rights beginning six (6") inches beneath the sidewalk pavement
situated in the City of Dallas, Dallas County, Texas and being part of XXXX
AVENUE (80' Right-of-Way), adjacent to City Block 256 as described in City
of
Dallas Ordinance No. 18991, passed by City Council of the City of Dallas on
January 8, 1986,recorded in Volume 87121, Page 2233 and being part of the
subsurface rights and land conveyed by the City of Dallas to Xxxx-Xxxx Avenue
No. 1 pursuant to Quit Claim Deed dated May 22, 1986, recorded in Volume 86174,
Page 5740, and in corrected Quit Claim Deed recorded in Volume 87122, Page
0000,
Xxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx (DRDCT).Containing within the recorded
documents 0.076 acres or 3,303.588 square feet of land.
TRACT
III: Subsurface Estate
BEING
all
of the subsurface rights beginning six (6") inches beneath the sidewalk pavement
situated in the City of Dallas, Dallas County, Texas and being part of PEARL
STREET (100' Right-of-Way) and SAN JACINTO STREET (55' Right-of-Way), adjacent
to City Block 256 as described in City of Dallas Ordinance No. 18991, passed
by
City Council of the City of Dallas on January 8, 1986, recorded in Volume 87121,
Page 0000 Xxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx (DRDCT) and being part of the
subsurface rights and land conveyed by the City of Dallas to Xxxx-Xxxx Avenue
No. 1 pursuant to Quit Claim Deed dated May 22, 1986, recorded in Volume 86174,
Page 5740, and in corrected Quit Claim Deed recorded in Volume 87122,
Page 2331 (DRDCT). Containing within the recorded documents 0.126 acres or
5,502.791 square feet of land.
TRACT
IV: Easement Estate and License Estate
(a) Easement
Estate created in Skybridge Easements Agreement, executed by and between
Xxxx-Xxxxxxxx #5, a Texas limited partnership and The Crow-Equitable-Nissei
Xxxx
Avenue Dallas Company, a Texas joint venture, dated June 30, 1988, filed for
record on October 5, 1988 and recorded in Volume 88194, Page 0000, Xxxx Xxxxxxx,
Xxxxxx Xxxxxx, Xxxxx.
(b) License
Estate created in City of Dallas Ordinance No. 19516, certified copies of which
were filed for record on June 23, 1987 in Volume 87120, Page 2079 and on August
19, 1999 in Volume 99162, Page 2865 of the Deed Records of Dallas County, Texas,
as amended by the City of Dallas Ordinance No. 19850, a certified copy of which
was filed for record on April 11, 1988 in Volume 88070, Page 3783 of the Deed
Records of Dallas County, Texas.
TRACT
V: Easement Estate and License Estate
(a) Easement
Estate created in Skybridge Easement Agreement executed by and between Plaza
of
the Americas Condominium Association, The Crow-Equitable-Nissei Xxxx Avenue
Dallas Company, Ltd., Xxxx-Xxxx Avenue #1 Limited Partnership, K-P Plaza Limited
Partnership and Texas Commerce Bank-Dallas, N.A., dated January 31, 1992, filed
for record on March 10, 1992 and recorded in Volume 92048, Page 0000, Xxxx
Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx.
(b) License
Estate created in City of Dallas Ordinance No. 19851, a certified copy filed
for
record April 11, 1988 and recorded in Volume 88070, Page 0000, Xxxx Xxxxxxx,
Xxxxxx Xxxxxx, Xxxxx.
Tract
VI: Fee Simple
BEING
a
tract of land situated in the X. XXXXXXX SURVEY, Abstract No. 495 and being
all
of XXX 0, XXXXX 000 xx xxx XXXXX XXXXXX ADDITION, an addition to the City of
Dallas as recorded in Volume 20000152, Page 00017 of the Deed Records of Dallas
County, Texas (DRDCT) and being all of a tract of land conveyed to THE
EQUITABLE-NISSEI DALLAS COMPANY as recorded in Volume 99048, Page 03564 (DRDCT)
and being more particularly described as follows;
BEGINNING
at a "X" cut found in concrete at the intersection of a corner-clip and the
southeasterly Right-of-Way line of SAN JACINTO STREET ( 55' Right-of-Way
);
THENCE
departing said corner-clip and along the southeasterly Right-of-Way line of
said
XXX XXXXXXX XXXXXX Xxxxx 00 deg 55 min 30 sec East a distance of 141.38 feet
to
a "X" cut found in concrete at a corner-clip;
THENCE
departing the southeasterly Right-of-Way line of said SAN JACINTO STREET and
along said corner-clip North 89 deg 31 min 30 sec East a distance of 14.24
feet
to a "X" cut set in concrete for corner in the southwesterly Right-of-Way line
of PEARL STREET (100' Right-of-Way)
THENCE
departing said corner-clip and along the southwesterly Right-of-Way line of
said
XXXXX XXXXXX Xxxxx 00 deg 52 min 30 sec East a distance of 144.02 feet to a
5/8inch iron rod found for the most northeasterly corner of a tract of land
conveyed to Xxxxxxx XxXxxxx as recorded in Volume 81208, Page 638
(DRDCT)
THENCE
departing the southwesterly Right-of-Way line of said PEARL STREET and along
the
common line of said XXX 0, XXXXX 000 and said XxXxxxx Tract South 44 deg 55
min30 sec West a distance of 164.07 feet to a 5/8 inch iron rod found for the
most southwesterly corner of said XxXxxxx tract, said point being found in
the
northeasterly Right-of-Way line of OLIVE STREET (60' Right-of-Way);
THENCE
departing said common line and along the northeasterly Right-of-Way line of
said
OLIVE STREET North 44 deg 52 min 30 sec West a distance of 144.00 feet to a
"X"
cut found in concrete at a corner-clip;
THENCE
departing the northeasterly Right-of-Way line of said OLIVE STREET and along
said corner-clip North 00 deg 00 min 54 sec East a distance of 14.17 feet to
the
POINT OF BEGINNING;
CONTAINING
within these metes and bounds 0.573 acres or 24,960 square feet of land more
or
less. Bearings contained within this field note description are based upon
anon
the ground survey performed in the field on the 30th day of March 2006 utilizing
the bearings as found on the Plat of 2200 XXXX ADDITION, an addition to the
City
of Dallas as recorded in Volume 85018, Page 1062 (DRDCT).
Purchase
and Sale Agreement – Chase Tower
1311923v.3 STR430/16009
EXHIBIT
B
SPECIAL
WARRANTY DEED
THE
STATE
OF
TEXAS §
§KNOW
ALL MEN BY THESE
PRESENTS:
COUNTY OF
DALLAS §
THAT
2200 XXXX, X.X., a Texas limited partnership
(“Grantor”), for and in consideration of the sum of
$10.00 and other good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, has GRANTED, BARGAINED, SOLD, and CONVEYED and
by
these presents does GRANT, BARGAIN, SELL, and CONVEY unto
______________________, a _________________ (“Grantee”)
the tracts or parcels of land in Dallas County, Texas, described in
Exhibit A, together with all rights, titles, and interests appurtenant
thereto including, without limitation, Grantor’s interest, if any, in any and
all adjacent streets, alleys, rights of way and any adjacent strips and gores
(such land and interests are hereinafter collectively referred to as the
“Property”).
This
Special Warranty Deed and the conveyance hereinabove set forth is executed
by
Grantor and accepted by Grantee subject to the matters described in
Exhibit B hereto and incorporated herein by this reference, to the extent
the same are validly existing and applicable to the Property (hereinafter
referred to collectively as the “Permitted
Exceptions”).
NOTWITHSTANDING
ANYTHING CONTAINED IN THIS SPECIAL WARRANTY DEED TO THE CONTRARY, THIS SPECIAL
WARRANTY DEED IS SUBJECT TO ALL DISCLAIMERS AND QUALIFICATIONS BY GRANTOR SET
FORTH IN ARTICLE 11 OF THE PURCHASE AND SALE AGREEMENT DATED OCTOBER 15, 2007,
BETWEEN GRANTOR, AS SELLER, AND GRANTEE (OR GRANTEE’S PREDECESSOR IN INTEREST),
AS PURCHASER, WITH RESPECT TO THE PROPERTY, AND GRANTOR AND GRANTEE AGREE THAT
ALL SUCH DISCLAIMERS AND QUALIFICATIONS SHALL, AS BETWEEN GRANTOR AND GRANTEE,
SURVIVE THE DELIVERY AND ACCEPTANCE OF THIS SPECIAL WARRANTY DEED.
TO
HAVE
AND TO HOLD the Property, together with all and singular the rights and
appurtenances thereunto in anywise belonging, unto Grantee, its successors
and
assigns forever, and Grantor does hereby bind itself, its successors and
assigns, to WARRANT AND FOREVER DEFEND all and singular the title to the
Property unto the said Grantee, its successors and assigns against every person
whomsoever lawfully claiming or to claim the same or any part thereof by,
through, or under Grantor but not otherwise, subject to the Permitted
Exceptions.
Grantee’s
address is: __________________________.
EXECUTED
as of _____________________, 200__.
2200
XXXX, X.X., a Texas limited partnership
|
|
By:
|
Stream
Acquisition XXXV, L.L.C., a Texas limited liability company, its
general
partner
|
By:
Name:
Title:
THE
STATE
OF
TEXAS §
§
COUNTY OF DALLAS §
This
instrument was acknowledged before me on ______________, 2007, by
___________________, ___________________ of Stream Acquisition XXXV, L.L.C.,
a
Texas limited liability company, on behalf of said limited liability company,
acting in the capacity as the general partner of 2200 Xxxx, X.X., a Texas
limited partnership.
Notary
Public, State of Texas
My
commission
expires:
Purchase
and Sale Agreement – Chase Tower
1311923v.3 STR430/16009
EXHIBIT
A
[DESCRIPTION
OF THE PROPERTY]
Purchase
and Sale Agreement – Chase Tower
1311923v.3 STR430/16009
EXHIBIT
B
[PERMITTED
EXCEPTIONS]
Purchase
and Sale Agreement – Chase Tower
1311923v.3 STR430/16009
EXHIBIT
C
XXXX
OF SALE, ASSIGNMENT AND ASSUMPTION
OF
LEASES AND CONTRACTS
[Chase
Tower, Dallas, Texas]
THIS
XXXX
OF SALE, ASSIGNMENT AND ASSUMPTION OF LEASES AND CONTRACTS (this
“Xxxx of Sale”) is made as of the __________ day of
_______________, 2007, by and between 2200 XXXX, X.X., a Texas
limited partnership (“Assignor”), and
______________________________, a ____________________
(“Assignee”).
W
I T N E S S E T H:
For
good
and valuable consideration, receipt and sufficiency of which are hereby
acknowledged, Assignor and Assignee hereby agree as follows:
1. Assignor
hereby sells, transfers, assigns and conveys to Assignee the
following:
(a) All
right, title and interest of Assignor in and to all tangible personal property
(“Personalty”) set forth in the inventory on Exhibit
A hereto and made a part hereof, and located on, and used in connection
with
the management, maintenance or operation of that certain land and improvements
located in the County of Dallas, State of Texas, as more particularly described
in Exhibit B hereto and made a part hereof (“Real
Property”), but excluding tangible personal property owned or
leased by Assignor’s property manager or the tenants of the Real Property under
the Tenant Leases (as defined below).
(b) All
right, title and interest of Assignor in and to those certain leases described
on Exhibit C hereto and made a part hereof (the “Tenant
Leases”), relating to the leasing of space in the Real Property and
all of the rights, interests, benefits and privileges of the lessor thereunder,
and to the extent Assignee has not received a credit therefor under the Purchase
Agreement (as defined below), all prepaid rents and security and other deposits
held by Assignor under the Tenant Leases and not credited or returned to
tenants, but subject to all terms, conditions, reservations and limitations
set
forth in the Tenant Leases.
(c) To
the
extent assignable, all right, title and interest of Assignor in and to those
certain contracts set forth on Exhibit D hereto and made a part hereof,
and all warranties, guaranties, indemnities and claims (including, without
limitation, for workmanship, materials and performance) and which exist or
may
hereafter exist against any contractor, subcontractor, manufacturer or supplier
or laborer or other services relating thereto (collectively, the
“Contracts”).
(d) All
right, title and interest of Assignor in and to those agreements set forth
on
Exhibit E hereto and made a part hereof (the “License
Agreements”).
2. This
Xxxx
of Sale is given pursuant to that certain Purchase and Sale Agreement (as
amended, the “Purchase Agreement”) dated as of
____________________, between Assignor and Assignee (or Assignee’s predecessor
in interest), providing for, among other things, the conveyance of the
Personalty, the Tenant Leases, the License Agreements and the
Contracts.
3. As
set
forth in Article 11 of the Purchase Agreement, which is hereby incorporated
by reference as if herein set out in full and except as set forth herein, the
property conveyed hereunder is conveyed by Assignor and accepted by Assignee
AS IS, WHERE IS, AND WITHOUT ANY WARRANTIES OF WHATSOEVER NATURE,
EXPRESS OR IMPLIED, EXCEPT AS EXPRESSLY SET FORTH IN THE PURCHASE AGREEMENT,
IT
BEING THE INTENTION OF ASSIGNOR AND ASSIGNEE EXPRESSLY TO NEGATE AND EXCLUDE
ALL
WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, WARRANTIES CREATED
BY
ANY AFFIRMATION OF FACT OR PROMISE OR BY ANY DESCRIPTION OF THE PROPERTY
CONVEYED HEREUNDER, OR BY ANY SAMPLE OR MODEL THEREOF, AND ALL OTHER WARRANTIES
WHATSOEVER CONTAINED IN OR CREATED BY THE TEXAS UNIFORM COMMERCIAL
CODE.
4. Assignee
hereby accepts the assignment of the Personalty, the Tenant Leases, the
Contracts and the License Agreements and agrees to assume and discharge, in
accordance with the terms thereof, (a) all of the obligations thereunder from
and after the date hereof, including, without limitation, the obligations and
duties of Assignor relating to any tenant deposits either assigned to Assignee
or for which Assignee received a credit from Assignor pursuant to the Purchase
Agreement, and (b) all of the lessor’s obligations under the Tenant Leases
relating to the physical, environmental or legal compliance status of the Real
Property, whether arising before or after the date
hereof. Additionally, but without limiting the generality of the
foregoing, (i) Assignee agrees to assume and discharge all leasing commissions,
costs for tenant improvements, legal fees and other costs and expenses incurred
with respect to Tenant Leases and Tenant Lease renewals and extensions and
License Agreements and License Agreement renewals and extensions executed
subsequent to the Effective Date of the Agreement and those set forth on
Exhibit F hereto, and (ii) Assignee agrees to assume and discharge all
obligations of Assignor, as landlord under the Xxxxx Lord Lease, to pay Xxxxx
Lord any amount due to Xxxxx Lord with respect to the Xxxxx Lord Electrical
Charge Dispute (as each such term is defined in the Purchase Agreement), other
than Assignor’s Retained Xxxxx Lord Electrical Dispute Obligations (as defined
below), and releases Assignor from all responsibility and liability in
connection with the Xxxxx Lord Electrical Charge Dispute (other than Assignor’s
Retained Xxxxx Lord Electrical Dispute Obligations). Assignee agrees
to indemnify and hold harmless Assignor from any cost, liability, damage or
expense (including attorneys’ fees) arising out of or relating to Assignee’s
failure to perform any of the foregoing obligations. As used herein,
“Assignor’s Retained Xxxxx Lord Electrical Dispute
Obligations” means amounts, if any, due to Xxxxx Lord for
overpayments of submetered electrical charges under the Xxxxx Lord Lease for
any
period prior to the Closing Date that exceed, in the aggregate,
$138,100.00.
5. Assignor
agrees to indemnify and hold harmless Assignee from any cost, liability, damage
or expense (including attorneys’ fees) arising out of or relating to Assignor’s
failure to perform (i) any of the obligations of Assignor under the Tenant
Leases, Contracts or License Agreements, to the extent accruing prior to the
date hereof, excluding all of the lessor’s obligations under the Tenant Leases
relating to the physical, environmental or legal compliance status of the Real
Property (whether accruing before or after the date hereof), and (ii) Assignor’s
Retained Xxxxx Lord Electrical Dispute Obligations.
6. This
Xxxx
of Sale may be executed in any number of counterparts, each of which shall
be
deemed an original, but all of which shall constitute one and the same
instrument.
[Remainder
of this page intentionally left blank]
Purchase
and Sale Agreement – Chase Tower
1311923v.3 STR430/16009
IN
WITNESS WHEREOF, the parties hereto have executed this Xxxx of Sale as of the
date first above written.
ASSIGNOR:
2200
XXXX, X.X., a Texas limited partnership
|
|
By:
|
Stream
Acquisition XXXV, L.L.C., a Texas limited liability company, its
general
partner
|
By:
Name:
Title:
ASSIGNEE:
,
a
By:
Name:
Title:
Exhibit
A Personalty
Exhibit
B Real
Property
Exhibit
C Tenant
Leases
Exhibit
D Contracts
Exhibit
E License
Agreements
Exhibit
F Lease
Costs and Expenses
Purchase
and Sale Agreement – Chase Tower
1311923v.3 STR430/16009
EXHIBIT
D
FIRPTA
CERTIFICATE
Section
1445 of the Internal Revenue Code provides that a transferee of a U.S. real
property interest must withhold tax if the transferor is a foreign
person. For U.S. tax purposes (including Section 1445), the owner of
a disregarded entity (which has legal title to a U.S. real property interest
under local law) will be the transferor of the property and not the disregarded
entity. To inform ______________________________
(“Transferee”) that withholding of tax is not required
upon the disposition of a U.S. real property interest by ______________________,
a ______________________ (“Transferor”), the beneficial owner of
______________________________ (U.S. employer identification number
____________________), the undersigned, in his capacity as
______________________________ of ______________________________, but not
individually, hereby certifies to Transferee the following on behalf of
Transferor:
1. Transferor
is not a foreign corporation, foreign partnership, foreign trust, or foreign
estate (as those terms are defined in the Internal Revenue Code and Income
Tax
Regulations);
2. Transferor
is not a disregarded entity as defined in Section 1.1445
2(b)(2)(iii);
3. Transferor’s
U.S. employer identification number is ___________; and
4. Transferor’s
office address is __________________________________.
Transferor
understands that this certification may be disclosed to the Internal Revenue
Service by Transferee and that any false statement contained herein could be
punished by fine, imprisonment, or both.
Under
penalties of perjury I declare that I have examined this certification and
to
the best of my knowledge and belief it is true, correct and complete, and I
further declare that I have authority to sign this document on behalf of
Transferor.
Dated
as
of _______________, 2007.
________________________________________,
a _____________________
By:
Name:
Title:
Purchase
and Sale Agreement – Chase Tower
1311923v.3 STR430/16009
EXHIBIT
E
NOTICE
TO TENANTS
_____________,
____
______________________________
______________________________
______________________________
______________________________
Dear
Tenant:
You
are
hereby notified that 2200 Xxxx, X.X., a Texas limited partnership
(“Seller”), the current owner of Chase Tower, 0000 Xxxx
Xxxxxx, Xxxxxx, Xxxxx, and the property known as the Pearl Street Garage and
located at the southwest corner of Pearl Street and San Jacinto, Dallas, Texas
(collectively, the “Property”) and the current owner of
the landlord’s interest in your lease in the Property, has sold the Property to
_____________________, a ___________________(“New
Owner”), as of the above date. In connection with such
sale, Seller has assigned and transferred its interest in your lease and your
security deposit thereunder in the amount of $_______________ (the
“Security Deposit”) to New Owner, and New Owner has
assumed and agreed to perform all of the landlord’s obligations under your lease
(including any obligations set forth in your lease or under applicable law
to
repay or account for the Security Deposit) from and after such
date. New Owner acknowledges that New Owner has received and is
responsible for the Security Deposit.
Accordingly,
(a) all your obligations under the lease from and after the date hereof,
including your obligation to pay rent, shall be performable to and for the
benefit of New Owner, its successors and assigns, and (b) all the obligations
of
the landlord under the lease, including any obligations thereunder or under
applicable law to repay or account for the Security Deposit, shall be the
binding obligation of New Owner and its successors and
assigns. Unless and until you are otherwise notified in writing by
New Owner, the address of New Owner for all purposes under your lease
is:
|
|
______________________________
|
|
|
______________________________
|
|
|
______________________________
|
|
|
______________________________
|
Very
truly yours,
SELLER:
2200
XXXX, X.X., a Texas limited partnership
|
|
By:Stream
Acquisition XXXV, L.L.C., a Texas limited liability company, its
general
partner
|
By:
Name:
Title:
NEW
OWNER:
_______________________________________,
a ____________________________________
By:
Name:
Title:
Purchase
and Sale Agreement – Chase Tower
1311923v.3 STR430/16009
EXHIBIT
F
TENANT
ESTOPPEL CERTIFICATE
|
From:
|
_________________________
|
|
|
(“Tenant”)
|
|
To:
|
Xxxxx
REIT 0000 Xxxx Xxxxxx LP and
|
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|
Xxxxx
REIT Properties, L.P.,
|
|
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its
or their respective affiliates, subsidiaries, successors and/or
assigns
|
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c/o
Hines Interests Limited Partnership
|
|
|
0000
Xxxx Xxx Xxxxxxxxx, Xxxxx 0000
|
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Xxxxxxx,
Xxxxx 00000-0000
|
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|
(“Purchaser”)
|
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|
and
|
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____________________________
|
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____________________________
|
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____________________________
|
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____________________________
|
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|
(“Landlord”)
|
|
Lease:
|
Lease
dated _______________, ____ between ____________________, a
________________, and ____________________, a ________________ covering
the Premises (as defined below), as modified, altered or amended
(as
further described in Paragraph 1 below) (the
“Lease”).
|
|
Premises:
|
Suite
_____, consisting of a total of __________ rentable square feet (as
set
forth in the Lease) (the “Premises”), located in
the building [commonly known as ______________________] having an
address of _______________________ (the
“Building”).
|
Tenant
hereby certifies to Landlord, Purchaser and any lender or mortgagee which may
provide financing to Purchaser secured by a deed of trust or mortgage on the
Building, and the successors and assigns of such lender or mortgagee
(collectively, “Purchaser's Lender”), as
follows:
1. Tenant
is
the current Tenant under the Lease, a true, correct and complete copy of which
(including all modifications, alterations and amendments thereto) is attached
as
Exhibit A hereto. Except for the documents attached as
Exhibit A hereto, the Lease has not been modified, altered or
amended in any respect. The Lease is in full force and effect and is
the only lease, agreement or understanding between Landlord and Tenant affecting
the Premises and any rights to parking. IF APPLICABLE: In
connection with the Premises, Tenant also leases ________ square feet of storage
space in the Building pursuant to [the Lease] [a separate storage space
license or lease agreement, a true, correct and complete copy of which is
attached as Exhibit A hereto].
2. The
term
of the Lease expires on ___________________. Except as described
below1, Tenant does not have
any options or rights to renew, expand, cancel or terminate the Lease, to reduce
the Premises nor to lease any additional space in the Building:
[Here
describe all applicable rights or options, or if “none”, so
state]
3. Tenant’s
current use of the Premises (which use is expressly permitted by the terms
of
the Lease) is [general office] [retail – if retail, specify exact nature of
retail use]. Tenant has accepted and is presently occupying the
Premises (and any applicable storage space).2
4. Tenant
has no option or right of first refusal or offer to purchase the Premises,
any
other portion of the Building or any interest therein.
5. Tenant's
interest in the Premises and under the Lease have not been assigned or
encumbered, and no portion of the Premises have been sublet, except in each
case
as specified on Exhibit B attached hereto.
6. The
base
rent under the Lease for the current lease year is $___________ per month
[and the rent for the storage space is $_______ per
month]. Tenant is responsible to pay, as additional rent, for
its pro rata share (______%) operating expenses for the Building in excess
of
base operating expenses of $__________ or base year expense, which are the
operating expenses for the calendar year ____. Tenant has fully paid
all base rent, [storage space rent], additional rent and other sums due
and payable under the Lease on or before the date of this Certificate and Tenant
has not paid any rent more than one month in advance. Tenant is not
in default under any of the terms, conditions or covenants of the Lease [or
any related storage space license or lease] to be performed or complied
with by Tenant, and no event has occurred and no circumstance exists which,
with
the passage of time or the giving of notice by Landlord, or both, would
constitute such a default.
7. As
of the
date of this Certificate, Landlord is not in default under any of the terms,
conditions or covenants of the Lease [or any related storage space license
or lease] to be performed or complied with by Landlord, and no event has
occurred and no circumstance exists which, with the passage of time or the
giving of notice by Tenant, or both, would constitute such a default. 3
8. As
of the
date of this Certificate, Tenant has no defenses, offsets or credits against
the
payment or rent and other sums due or to become due under the Lease [or any
related storage space license or lease] or against the performance of any
other of Tenant’s obligations under the Lease [or any related storage space
license or lease].4
9. Tenant
has paid or delivered to Landlord a cash security deposit in the amount of
$___________ [and/or a letter of credit (identify letter of credit by
instrument number, date, issuing bank and named beneficiary)], and of such
deposit $________ remains on deposit with Landlord [and the current amount
available to be drawn under such letter of credit is
$__________.]
10. Tenant
agrees that, from and after the date hereof, Tenant will not pay any rent under
the Lease more than one (1) month in advance of its due date except to the
extent required by the terms of the Lease (e.g., payments of estimated operating
expenses).
11. Tenant
is
not entitled to any rent concession, rent abatement or “free” rent.
12. All
improvements, alterations, or additions to the Premises required to be made
by
Landlord have been completed to the satisfaction of Tenant. All
contributions required to be made by Landlord for improvements to the Premises,
including abatements, allowances or credits or offsets, if any, against rent
or
other charges due under the Lease, have been paid in full to Tenant.5
13. There
are
no actions, whether voluntary or otherwise, pending or threatened against Tenant
(or any guarantor of Tenant’s obligations pursuant to the Lease) under the
bankruptcy or insolvency laws of the United States or any state thereof, and
there are no attachments, executions, assignments for the benefit of creditors,
or voluntary or involuntary proceedings under the U.S. Bankruptcy Code or any
other debtor relief laws pending or threatened against Tenant.6
14. The
correct name and mailing address of Tenant for notice purposes under the Lease
is as follows:
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_____________________________
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_____________________________
|
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_____________________________
|
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_____________________________
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Attn:
_________________________
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with
copy to:
|
_____________________________
|
|
|
_____________________________
|
|
|
_____________________________
|
|
|
_____________________________
|
|
|
Attn:
_________________________
|
15. Tenant
understands that this Certificate is required in connection with Purchaser’s
acquisition of the Property, and Tenant agrees that Purchaser and its lenders,
successors and/or assigns (including, without limitation, Purchaser’s Lender,
any other parties providing financing of any type or equity in connection with
Purchaser’s acquisition of the Property, and their respective successors and/or
assigns) will, and will be entitled to, rely on the truth of this
Certificate.
16. The
party
executing this Certificate on behalf of Tenant represents that he/she has been
duly authorized to do so on behalf of Tenant.
EXECUTED
on this _____ day of ___________, 200_.
TENANT:
By:
Name:
Title:
1
If a tenant changes
the phrase “Except as described below” to “Except as provided in the Lease”,
then for purposes of Section 6.4 of the
Purchase and Sale Agreement, such Tenant Estoppel Certificate shall still
constitute an acceptable Tenant Estoppel.
2
In the case of
recently-signed Leases or expansions in which the premises (or the additions
thereto) have not been delivered to the tenant, this paragraph may be modified
to reflect such facts, and in such case, such Tenant Estoppel Certificate
shall
still constitute an acceptable Tenant Estoppel.
3
If a tenant
qualifies this paragraph with “to Tenant’s knowledge,” “known to Tenant” or
similar knowledge qualifiers, then for purposes of Section 6.4 of the Purchase and Sale Agreement,
such Tenant Estoppel Certificate shall still constitute an acceptable Tenant
Estoppel.
4
If a tenant
qualifies this paragraph with “to Tenant’s knowledge,” “known to Tenant” or
similar knowledge qualifiers, then for purposes of Section 6.4 of the Purchase and Sale Agreement,
such Tenant Estoppel Certificate shall still constitute an acceptable Tenant
Estoppel.
5
This paragraph may
be modified to reflect the non-completion of space and/or the non-payment
of
allowances for Leases in which construction of leasehold improvements in
the
Premises (or any expansion thereof) is ongoing as of the date of the Tenant
Estoppel Certificate or is to be commenced in the future, so long as all
such
allowances and related Leasing Costs for such leasehold improvements are
specifically set forth on Exhibit I to the Purchase and Sale Agreement
and in such case, such Tenant Estoppel Certificate shall still constitute
an
acceptable Tenant Estoppel.
6
If a tenant
qualifies this paragraph with “to Tenant’s knowledge,” “known to Tenant” or
similar knowledge qualifiers, then for purposes of Section 6.4 of the Purchase and Sale Agreement,
such Tenant Estoppel Certificate shall still constitute an acceptable Tenant
Estoppel.
Purchase
and Sale Agreement – Chase Tower
1311923v.3 STR430/16009
EXHIBIT
A
TO
TENANT
ESTOPPEL CERTIFICATE
[Lease
Agreement and Amendments Thereto, If Any]
Purchase
and Sale Agreement – Chase Tower
1311923v.3 STR430/16009
EXHIBIT
B
TO
TENANT
ESTOPPEL CERTIFICATE
[Assignments,
Encumbrances or Sublettings of Premises, If Any]
Purchase
and Sale Agreement – Chase Tower
1311923v.3 STR430/16009
EXHIBIT
G
LIST
OF TENANTS
Xxxxx
Development of Texas, L.L.C.
American
Capital Strategies, LTD
Aramark
Services, Inc.
Xxxxxx
Xxxxxx Xxxxxxxxx & Xxxxxxx, Inc.
Best
Associates
Calyon
JPMorgan
Chase Bank National Association
Crews,
Shepherd & XxXxxxx, LLP Xxxxxx & Bird LLP
Dallas
Petroleum Club
Xxxxxx
Xxxxxxx & Associates, LLP
Deloitte
& Touche USA LLP
Etalk
Corporation
Evolve
Capital, LTD
Execu
Store Convenience Shops, Inc.
FCM
Investments, X.X.
Xxxxxxxxx
& Xxxxxxxx L.L.P.
Xxxxxxxxx
Traurig, LLP
Xxxxxx
X.
Xxxxxxx
Xxxxx
Lord Xxxxxxx & Xxxxxxx LLP (f/k/a Xxxxx Liddell & Xxxx,
PLLC)
Xxxxxxxx
Xxxxxx LLP
Xxxxxx
Xxxxxxxx dba Xxxx Xxxxxxx, Inc.
McKinsey
& Company, Inc. United States
Mercury
Financial Group, LLC
Metropolitan
Fiber Systems of Dallas, Inc.
MSDW
Southwest Partners, L.P.
Xxxxx
Xxxxxxx dba Cuff and Collar Dry Cleaner & Laundry (cx: Nurtuza)
NexBank,
SSB
The
Novati Group LLC
Xxxxxx
Xxxxxxxxx LLP
The
Prudential Insurance Company of America
Radiologix,
Inc.
RECN
of
Texas LP dba Resources Global Professionals
Xxxxxx
Xxxxxxxx dba Morning Glory Shoe Service
Xxxxx
& Xxxxx, LLP and Lawfinders Associates, Inc.
Standard
Parking Corporation
Stream
Realty Partners, L.P.
Stream
Dallas Office, L.P.
Summit
Partners Management Co.
Texas
Petroleum Resources
Transition
Capital Partners, LTD and Xxxxxx Xxxxxxxxxxxx
Transition
Capital Partners, LTD
United
Parcel Service, Inc. (for space on LL2-99)
Xxxxxxx
Xxxxx Funds Placement Group, L.L.C.
Z
Projects, LLC
Other
Rents (including licensees under License Agreements):
Xxxxxxx
Xxxxxxx dba Carsmetics
Cogent
Communications, Inc.
Cypress
Communications, Inc.
Dallas
MTA, L.P. dba Verizon Wireless
DFW
Parksigns Advertising, L.P.
Federal
Express Corporation
Xxxxxx
Xxxxxxx dba Big Media
United
Parcel Service, Inc. (for Drop Box)
Purchase
and Sale Agreement – Chase Tower
1311923v.3 STR430/16009
EXHIBIT
H
MANDATORY
ARBITRATION
The
parties have agreed to submit disputes to mandatory arbitration in accordance
with the following provisions:
1. Arbitration.
(a) General. Any
dispute among Seller and Purchaser as to the interpretation of any provision
of
this Agreement or the rights and obligations of any party hereunder shall be
resolved through binding arbitration as hereinafter provided in Dallas,
Texas.
(b) Selection
of Arbitrator. If arbitration is required to resolve a
dispute among Seller and Purchaser, either Seller or Purchaser may select one
person to act as the arbitrator for resolution of the dispute (the first party
to give written notice of its proposed arbitrator to the other party hereto
shall be the “Initiating Party”). The person
so selected by the Initiating Party (1) shall not be an affiliate of any party
to the dispute in question, and (2) shall have his name on a list of arbitrators
approved by the American Arbitration Association
(“AAA”), Judicial Arbitration and Mediation Services,
Inc. or another entity then active in arbitration. The Initiating
Party shall give written notice to the other party hereto specifying the person
selected by the Initiating Party to act as the arbitrator for resolution of
that
dispute. The other party hereto shall have the right to object to the
qualifications or independence of the person so selected by the Initiating
Party
to act as the arbitrator for resolution of that dispute. If, within
ten Business Days after the Initiating Party gives written notice specifying
the
person selected by the Initiating Party to act as arbitrator, the Initiating
Party has not received a writing from the other party hereto objecting to the
qualifications or independence of the person so selected by the Initiating
Party, the person selected by the Initiating Party shall act as the arbitrator
for resolution of the dispute in question. If, within ten Business
Days after the Initiating Party gives written notice specifying the person
selected by the Initiating Party to act as arbitrator, the Initiating Party
receives a writing from the other party hereto objecting to the qualifications
or independence of the person so selected by the Initiating Party, the person
so
selected by the Initiating Party shall not serve as the arbitrator for
resolution of the dispute, and if the parties have not mutually otherwise agreed
on an arbitrator within five Business Days after written notice of the
objection, either party hereto may request the Dallas office of the AAA to
select one person to act as the arbitrator for resolution of the
dispute.
(c) Rules
of Arbitration. The arbitrator selected pursuant to
Section 1(b) above will establish the
rules for proceeding with the arbitration of the dispute, which will be binding
upon all parties to the arbitration proceeding. The arbitrator may
use the rules of AAA for commercial arbitration but is encouraged to adopt
the
rules the arbitrator deems appropriate to accomplish the arbitration in the
quickest and least expensive manner possible. Accordingly, the
arbitrator may (1) dispense with any formal rules of evidence and allow hearsay
testimony so as to limit the number of witnesses required, (2) accept evidence
of property values without formal appraisals and upon such information provided
by Seller and Purchaser or other persons and otherwise minimize discovery
procedures as the arbitrator deems appropriate, (3) act upon his understanding
or interpretation of the law on any issue without the obligation to research
the
issue or accept or act upon briefs of the issue prepared by any party, (4)
limit
the time for presentation of any party’s case as well as the amount of
information or number of witnesses to be presented in connection with any
hearing, and (5) impose any other rules which the arbitrator believes
appropriate to effect a resolution of the dispute as quickly and inexpensively
as possible. In any event, the arbitrator (A) shall permit each side
no more than two depositions (including any deposition of experts), which
depositions may not exceed four hours each, one set of ten interrogatories
(inclusive of sub-parts) and one set of five document requests (inclusive of
sub-parts), (B) shall not permit any requests for admissions, (C) shall limit
the hearing, if any, to two days, and (D) shall render his or her decision
within 60 days of the filing of the arbitration.
(d) Costs
of Arbitration. The arbitrator will have the exclusive
authority to determine and award costs of arbitration and the costs incurred
by
any party for its attorneys, advisors and consultants.
(e) Award
of Arbitrator. Any award made by the arbitrator shall be
binding on Seller, Purchaser and all parties to the arbitration and shall be
enforceable to the fullest extent of the law.
(f) Governing
Law; Actual Damages; Etc. In reaching any determination
or award, the arbitrator will apply the laws of the state in which the Property
is located. Except as permitted under Section 1(d) above, the arbitrator’s award will be
limited to actual damages and will not include punitive or exemplary
damages. Nothing contained in this Agreement will be deemed to give
the arbitrator any authority, power or right to alter, change, amend, modify,
add to or subtract from any of the provisions of this Agreement. All
privileges under state and federal law, including, without limitation,
attorney-client, work product and party communication privileges, shall be
preserved and protected. All experts engaged by a party
must be disclosed to the other party within 14 days after the date of notice
and
demand for arbitration is given.
Purchase
and Sale Agreement – Chase Tower
1311923v.3 STR430/16009
EXHIBIT
I
LEASING
COSTS TO BE PAID BY SELLER OR CREDITED TO
PURCHASER
[See
schedules that follow this cover page, which schedules constitute this
Exhibit]
Purchase
and Sale Agreement – Chase Tower
1311923v.3 STR430/16009
EXHIBIT
J
ADDITIONAL
DUE DILIGENCE MATERIALS
1. Copies
of
any and all Leases (including any and all amendments, riders, licenses, work
letters, inducement letters, side letters, etc.), easements, contracts, and
agreements (including consulting, leasing, management, maintenance, repair,
service, supply and contracts or agreements of any kind or nature) affecting
the
Property, rent rolls, delinquency reports, any and all capital expenditure
budgets and reports, and any other items reasonably requested by Purchaser
relating exclusively to the ownership, operation or maintenance of the
Property.
2. Any
and
all documentation which is in possession of Seller or its authorized
representatives or agents in connection with the environmental condition of
the
Property (including a Phase I and Phase II, if available), any and all
geotechnical, foundation and soils reports, all recorded documents and
agreements affecting the Property, remediation and monitoring plans,
correspondence with governmental agencies, any title reports on the Property
including copies of Seller’s existing title policies (but with the insured
amounts redacted at Seller’s option), together with copies of all supporting
documents and exhibits, and any surveys of the Property.
3. Copies
of
any and all area calculations, surveys, plans and specifications (ADA,
architectural, engineering, landscaping, interiors, etc.), construction
documents, site plans, computerized or CAD documents and electronic files,
engineering reports, physical inspection reports, certificates of occupancy,
permits, governmental entitlements/approvals and similar documents in the
possession of Seller or its authorized representatives or agents.
4. Copies
of
any audited financial statements and expenses for the last three full years
including the following supporting documentation: (a) copies of the
property tax assessments and tax bills for the past three years,
(b) insurance policies and premiums, (c) a schedule of all personal
property and fixtures, (d) utility statements and contracts,
(e) operating expense reconciliations and base year calculations with
supporting documentation for all tenants of the Property, (f) parking
garage operating statements, and (g) all maintenance schedules, records or
reports.
5. Seller’s
general files, including all landlord/tenant correspondence.
Purchase
and Sale Agreement – Chase Tower
1311923v.3 STR430/16009
EXHIBIT
K
FORMS
OF SKYBRIDGE ESTOPPELS
Skybridge
Estoppel Certificate – 0000 Xxxx Xxxxxx
The
following terms as used in this Certificate have the meanings defined
below:
|
0000
Xxxx Xxxxxx
|
_____________________
|
|
|
Owner:
|
|
0000
Xxxx Xxxxxx
|
0000
Xxxx, X.X.
|
|
|
Owner:
|
|
Agreement:
|
Skybridge
Easements Agreement dated June 30, 1988, filed for record on October
5,
1988 and recorded in Volume 88194, Page 0000, Xxxx Xxxxxxx, Xxxxxx
Xxxxxx,
Xxxxx
|
2100
Xxxx
Avenue Owner hereby agrees with and certifies to Xxxxx REIT 0000 Xxxx Xxxxxx
LP
and its designated affiliate, as purchasers of the real property owned by 0000
Xxxx Xxxxxx Owner located at 0000 Xxxx Xxxxxx, Xxxxxx, Xxxxx, and as successors
to 0000 Xxxx Xxxxxx Owner under the Agreement, and to their mortgagees, as
follows:
1. The
Agreement has not been amended, modified or supplemented.
2. The
Agreement is in full force and effect. As of the date of this
Certificate, to the current actual knowledge of the 0000 Xxxx Xxxxxx Owner,
without investigation or inquiry, there are no defaults under the Agreement
by
0000 Xxxx Xxxxxx Owner or 0000 Xxxx Xxxxxx Owner which remain uncured nor are
there any conditions which with the passage of time or giving of notice or
both
would become a default by 0000 Xxxx Xxxxxx Owner or 0000 Xxxx Xxxxxx Owner
under
the Agreement.
3. As
of the date of the Certificate, the 0000 Xxxx Xxxxxx Owner does not owe the
0000
Xxxx Xxxxxx Owner any costs or expenses under the Agreement.
4. As
of the date of this Certificate, 0000 Xxxx Xxxxxx Owner has not prepaid to
the
0000 Xxxx Xxxxxx Owner any charges payable by 0000 Xxxx Xxxxxx Owner under
the
Agreement.
Executed
as of the ____ day of ____________, 2007.
__________________________________
By:
Name:
Title:
Skybridge
Estoppel Certificate – Plaza of the Americas
The
following terms as used in this Certificate have the meanings defined
below:
|
Plaza
Owner:
|
_____________________
|
|
0000
Xxxx Xxxxxx
|
0000
Xxxx, X.X.
|
|
|
Owner:
|
|
Agreement:
|
Skybridge
Easements Agreement dated January 31, 1992, filed for record on March
10,
1992 and recorded in Volume 92048, Page 0000, Xxxx Xxxxxxx, Xxxxxx
Xxxxxx,
Xxxxx
|
Plaza
Owner hereby agrees with and certifies to Xxxxx REIT 0000 Xxxx Xxxxxx LP and
its
designated affiliate, as purchasers of the real property owned by 0000 Xxxx
Xxxxxx Owner located at 0000 Xxxx Xxxxxx, Xxxxxx, Xxxxx, and as successors
to
0000 Xxxx Xxxxxx Owner under the Agreement, and to their mortgagees, as
follows:
1. The
Agreement has not been amended, modified or supplemented.
2. The
Agreement is in full force and effect. As of the date of this
Certificate, to the current actual knowledge of the Plaza Owner, without
investigation or inquiry, there are no defaults under the Agreement by Plaza
Owner or 0000 Xxxx Xxxxxx Owner which remain uncured nor are there any
conditions which with the passage of time or giving of notice or both would
become a default by Plaza Owner or 0000 Xxxx Xxxxxx Owner under the
Agreement.
3. As
of the date of the Certificate, the 0000 Xxxx Xxxxxx Owner does not owe the
Plaza Owner any costs or expenses under the Agreement.
4. As
of the date of this Certificate, Plaza Owner has not prepaid to the 0000 Xxxx
Xxxxxx Owner any charges payable by Plaza Owner under the Agreement, except
the
sum of $23,000.00, which is Plaza Owner’s share of estimated expenses under the
Agreement for the calendar year 2007.
5. Plaza
Owner agrees that Xxxxx Interests Limited Partnership is an acceptable “Manager”
under the Agreement.
Executed
as of the ____ day of ____________, 2007.
__________________________________
By:
Name:
Title:
Purchase
and Sale Agreement – Chase Tower
1311923v.3 STR430/16009
EXHIBIT
L
TERMS
OF AMENDMENT TO LEASE WITH STREAM REALTY PARTNERS,
L.P.
The
Lease
with Stream Realty Partners, L.P. will be amended to provide as
follows:
|
1.
|
Section
27 of the Lease will be amended (i) to delete the tenant’s option to
terminate such Lease if Stream Realty Partners, L.P. (or its affiliate,
Stream Dallas Office, L.P.) ceases to manage the Property and (ii)
to
provide that the tenant shall have the right to terminate such Lease
on
not less than six (6) months’ prior written notice to the landlord in the
event Stream Realty Partners, L.P. (or any of its affiliates) ceases
to be
the exclusive leasing agent for the Property (unless such cessation
is due
to the resignation by Stream Realty Partners,
L.P.).
|
|
2.
|
The
size of the 44th
floor space
(or the 53rd
floor space
if tenant exercises its substitution option as provided in Amendment
No. 2
to such Lease) shall be reduced by 3,092 rentable square feet
(representing the amount of space deemed to be the Management Office
as
defined in Amendment No. 2 to such Lease). The rent shall be
correspondingly reduced and the tenant’s proportionate share shall be
adjusted to reflect the reduction in the size of the
premises.
|
|
3.
|
The
expiration of each of the two abatement periods under Section 3(c)
of
Amendment No. 2 to such Lease shall be extended by 2-1/2 months so
that
the first abatement period will end on 9/15/2008 and the second abatement
period will end on 3/15/2009. The Abatement Square Footage (as
defined in Amendment No. 2 to such Lease) for the first abatement
period
shall be 100% of the rentable square footage of the 44th
floor space
(or 53rd
floor space, as applicable) and the Abatement Square Footage for
the
second abatement period shall be 50% of the rentable square footage
of the
44th
floor space (or 53rd
floor space,
as applicable).
|
|
4.
|
Other
changes necessary to conform such Lease to the above amendments will
be
made.
|
Purchase
and Sale Agreement – Chase Tower
1311923v.3 STR430/16009
EXHIBIT
M
ASSIGNMENT
AND ASSUMPTION OF LICENSE
THIS
ASSIGNMENT AND ASSUMPTION OF LICENSE (the “Assignment”)
dated as of _____________ ___, 2007 (the “Effective
Date”), is between 2200 XXXX, X.X., a Texas
limited partnership (“Assignor”), and
_______________________________, a
________________________________(“Assignee”).
A. The
City Council of the City of Dallas, by Ordinance No. 19516 recorded in Volume
87120, Page 2079 of the Real Property Records of Dallas County, Texas, as
re-recorded in Volume 99162, Page 2865 and amended by Ordinance No. 19850
recorded in Volume 88070, Page 3783 (collectively hereinafter referred to as
the
“Ordinance”), granted to Xxxx-Xxxxxxxx #0 xxx Xxxx Xxxx
Xxxxxx #1 (“Xxxx Xxxx”), each a Texas limited
partnership, and collectively, as grantee, a revocable license (the
“License”) to occupy, maintain and utilize the Property
(as defined in the Ordinance), for the purpose of constructing, operating and
maintaining a pedestrian skybridge within the Property.
B. The
Equitable-Nissei Dallas Company, as successor-in-interest to Xxxx Xxxx, assigned
all of its right, title and interest in and to the License to Assignor pursuant
to an Assignment and Assumption of License Agreement dated as of June 15, 2006,
filed for record on June 15, 2006, and recorded in Document No. 200600218545
of
the Official Public Records of Dallas County, Texas.
C. Assignor
has entered into a purchase and sale agreement (the “Purchase
Agreement”) dated as of October 15, 2007, wherein Assignor will
sell to Assignee its fee simple interest in certain property abutting the
Property and located at 0000 Xxxx Xxxxxx, Xxxxxx, Xxxxx.
D. In
connection with the Purchase Agreement and the terms and conditions contained
therein, Assignor has agreed to assign all of its right, title and interest
in
and to the License to Assignee and Assignee desires to accept such assignment,
agrees to all of the terms, conditions and provision contained in the Ordinance,
and agrees to assume all obligations and requirements of Assignor under the
Ordinance, all on the terms and conditions below.
ACCORDINGLY,
the parties hereby agree as follows:
1. Assignor
hereby assigns to Assignee all of Assignor’s right, title, and interest, if any,
in and to License, from and after the Effective Date, without warranty,
representation or recourse by or on Assignor.
2. Assignee
hereby accepts the foregoing assignment by Assignor and assumes all of the
Assignor’s obligations under the License and the Ordinance that first arise and
accrue from and after the Effective Date.
3. This
Assignment shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns.
4. This
Assignment shall be governed and construed in accordance with the laws of the
State of Texas.
This
Assignment may be executed in any number of counterparts, each of which shall
be
deemed an original, but all of which taken together shall constitute one and
the
same instrument.
Assignor
and Assignee have executed this Assignment as of the Effective
Date.
ASSIGNOR: 2200
XXXX, X.X., a Texas limited partnership
|
|
By:
|
Stream
Acquisition XXXV, L.L.C.,
|
|
|
a
Texas limited liability company,
|
its
general partner
By:
Name:
Title:
ASSIGNEE: _________________________________________,
a
______________________________
By:
Name:
|
Title:
|
Purchase
and Sale Agreement – Chase Tower
1311923v.3 STR430/16009
THE
STATE
OF
TEXAS §
§
COUNTY
OF
DALLAS §
This
instrument was acknowledged before
me on ________ ___, 2007, by _______________, ________________ of Stream
Acquisition XXXV, L.L.C., a Texas limited liability company, in its capacity
as
general partner of 2200 Xxxx, X.X., a Texas limited partnership, on behalf
of
such entity.
Notary
Public, State of
Texas
My
Commission
Expires: Notary's
name printed:
___________________
THE
STATE
OF
_________ §
§
COUNTY
OF
____________ §
This
instrument was acknowledged before
me on _______________ ___, 2007, by _____________________________,
____________________ of ________________________, a ____________________, on
behalf of such entity.
Notary
Public, State
of
My
Commission
Expires: Notary's
name printed:
___________________
Purchase
and Sale Agreement – Chase Tower
1311923v.3 STR430/16009
EXHIBIT
N
ASSIGNMENT
AND ASSUMPTION OF LICENSE
THIS
ASSIGNMENT AND ASSUMPTION OF LICENSE (the “Assignment”)
dated as of _____________ ___, 2007 (the “Effective
Date”), is between 2200 XXXX, X.X., a Texas
limited partnership (“Assignor”), and
_______________________________, a
________________________________(“Assignee”).
A. The
City Council of the City of Dallas, by Ordinance No. 19851 recorded in Volume
88070, Page 3789 of the Real Property Records of Dallas County, Texas (the
“Ordinance”), granted to The Crow-Equitable-Nissei Xxxx
Avenue Dallas Company (“Crow-Equitable”), a Texas joint
venture, as grantee, a revocable license (the “License”)
to occupy, maintain and utilize the Licensed Area (as defined in the Ordinance),
for the purpose of constructing, operating and maintaining a pedestrian
skybridge within the Licensed Area.
B. The
Equitable-Nissei Dallas Company, as successor-in-interest to Crow Equitable,
assigned all of its right, title and interest in and to the License to Assignor
pursuant to an Assignment and Assumption of License Agreement dated as of June
15, 2006, filed for record on June 15, 2006, and recorded in Document No.
200600218546 of the Official Public Records of Dallas County,
Texas.
C. Assignor
has entered into a purchase and sale agreement (the “Purchase
Agreement”) dated as of October 15, 2007, wherein Assignor will
sell to Assignee its fee simple interest in certain property abutting the
Property and located at 2200 Xxxx Xxxxxx, Xxxxxx, Xxxxx.
D. In
connection with the Purchase Agreement and the terms and conditions contained
therein, Assignor has agreed to assign all of its right, title and interest
in
and to the License to Assignee and Assignee desires to accept such assignment,
agrees to all of the terms, conditions and provision contained in the Ordinance,
and agrees to assume all obligations and requirements of Assignor under the
Ordinance, all on the terms and conditions below.
ACCORDINGLY,
the parties hereby agree as follows:
1. Assignor
hereby assigns to Assignee all of Assignor’s right, title, and interest, if any,
in and to License, from and after the Effective Date, without warranty,
representation or recourse by or on Assignor.
2. Assignee
hereby accepts the foregoing assignment by Assignor and assumes all of the
Assignor’s obligations under the License and the Ordinance that first arise and
accrue from and after the Effective Date.
3. This
Assignment shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns.
4. This
Assignment shall be governed and construed in accordance with the laws of the
State of Texas.
This
Assignment may be executed in any number of counterparts, each of which shall
be
deemed an original, but all of which taken together shall constitute one and
the
same instrument.
Assignor
and Assignee have executed this Assignment as of the Effective
Date.
ASSIGNOR: 2200
XXXX, X.X., a Texas limited partnership
|
|
By:
|
Stream
Acquisition XXXV, L.L.C.,
|
|
|
a
Texas limited liability company,
|
its
general partner
By:
Name:
Title:
ASSIGNEE: _________________________________________,
a
______________________________
By:
Name:
|
Title:
|
Purchase
and Sale Agreement – Chase Tower
1311923v.3 STR430/16009
THE
STATE
OF
TEXAS §
§
COUNTY
OF
DALLAS §
This
instrument was acknowledged before
me on ________ ___, 2007, by _______________, ________________ of Stream
Acquisition XXXV, L.L.C., a Texas limited liability company, in its capacity
as
general partner of 2200 Xxxx, X.X., a Texas limited partnership, on behalf
of
such entity.
Notary
Public, State of
Texas
My
Commission
Expires: Notary's
name printed:
___________________
THE
STATE
OF
_________ §
§
COUNTY
OF
____________ §
This
instrument was acknowledged before
me on _______________ ___, 2007, by _____________________________,
____________________ of ________________________, a ____________________, on
behalf of such entity.
Notary
Public, State
of
My
Commission
Expires: Notary's
name printed:
___________________
Purchase
and Sale Agreement – Chase Tower
1311923v.3 STR430/16009
EXHIBIT
O
ASSIGNMENT
AND ASSUMPTION OF LICENSE
THIS
ASSIGNMENT AND ASSUMPTION OF LICENSE (the “Assignment”)
dated as of _____________ ___, 2007 (the “Effective
Date”), is between 2200 XXXX, X.X., a Texas
limited partnership (“Assignor”), and
_______________________________, a
________________________________(“Assignee”).
A. The
City Council of the City of Dallas, by Ordinance No. 20029 recorded in Volume
89042, Page 3977 of the Real Property Records of Dallas County, Texas (the
“Ordinance”), granted to The Crow-Equitable-Nissei Xxxx
Avenue Dallas Company (“Crow-Equitable”), a Texas joint
venture, as grantee, a revocable license (the “License”)
to occupy, maintain and utilize the Licensed Area (as defined in the Ordinance),
for the purpose of landscaping planters and steps within the Licensed
Area.
B. The
Equitable-Nissei Dallas Company, as successor-in-interest to Crow Equitable,
assigned all of its right, title and interest in and to the License to Assignor
pursuant to an Assignment and Assumption of License Agreement dated as of June
15, 2006, filed for record on June 15, 2006, and recorded in Document No.
200600218544 of the Official Public Records of Dallas County,
Texas.
C. Assignor
has entered into a purchase and sale agreement (the “Purchase
Agreement”) dated as of October 15, 2007, wherein Assignor will
sell to Assignee its fee simple interest in certain property abutting the
Property and located at 2200 Xxxx Xxxxxx, Xxxxxx, Xxxxx.
D. In
connection with the Purchase Agreement and the terms and conditions contained
therein, Assignor has agreed to assign all of its right, title and interest
in
and to the License to Assignee and Assignee desires to accept such assignment,
agrees to all of the terms, conditions and provision contained in the Ordinance,
and agrees to assume all obligations and requirements of Assignor under the
Ordinance, all on the terms and conditions below.
ACCORDINGLY,
the parties hereby agree as follows:
1. Assignor
hereby assigns to Assignee all of Assignor’s right, title, and interest, if any,
in and to License, from and after the Effective Date, without warranty,
representation or recourse by or on Assignor.
2. Assignee
hereby accepts the foregoing assignment by Assignor and assumes all of the
Assignor’s obligations under the License and the Ordinance that first arise and
accrue from and after the Effective Date.
3. This
Assignment shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns.
4. This
Assignment shall be governed and construed in accordance with the laws of the
State of Texas.
This
Assignment may be executed in any number of counterparts, each of which shall
be
deemed an original, but all of which taken together shall constitute one and
the
same instrument.
Assignor
and Assignee have executed this Assignment as of the Effective
Date.
ASSIGNOR: 2200
XXXX, X.X., a Texas limited partnership
|
|
By:
|
Stream
Acquisition XXXV, L.L.C.,
|
|
|
a
Texas limited liability company,
|
its
general partner
By:
Name:
Title:
ASSIGNEE: _________________________________________,
a
______________________________
By:
Name:
|
Title:
|
Purchase
and Sale Agreement – Chase Tower
1311923v.3 STR430/16009
THE
STATE
OF
TEXAS §
§
COUNTY
OF
DALLAS §
This
instrument was acknowledged before
me on ________ ___, 2007, by _______________, ________________ of Stream
Acquisition XXXV, L.L.C., a Texas limited liability company, in its capacity
as
general partner of 2200 Xxxx, X.X., a Texas limited partnership, on behalf
of
such entity.
Notary
Public, State of
Texas
My
Commission
Expires: Notary's
name printed:
___________________
THE
STATE
OF
_________ §
§
COUNTY
OF
____________ §
This
instrument was acknowledged before
me on _______________ ___, 2007, by _____________________________,
____________________ of ________________________, a ____________________, on
behalf of such entity.
Notary
Public, State
of
My
Commission
Expires: Notary's
name printed:
___________________
Purchase
and Sale Agreement – Chase Tower
1311923v.3 STR430/16009
SCHEDULE
9.1.2
An
alleged slip and fall on an icy sidewalk was reported on 11/30/06 (claimant-
Xxxxx Xxxxxxxxx). Xxxxx Insurance, the general liability insurance carrier,
is
processing the claim.
Purchase
and Sale Agreement – Chase Tower
1311923v.3
STR430/16009
SCHEDULE
9.1.3
Texas
Petroleum Resources is in default in the payment $115,326.03 under its Lease
(including rent, late charges and parking charges), which amount was outstanding
as of September 12, 2007, as itemized in Seller’s letter to such tenant dated
September 12, 2007, plus additional amounts that have become due under such
Lease since the date of such letter.
Xxxxx
Lord, as tenant, has notified Seller, as landlord, by letter dated May 22,
2007,
that Xxxxx Lord disputes its obligation to pay submetered electrical charges
and
has demanded a refund of alleged electrical overcharges.
Purchase
and Sale Agreement – Chase Tower
1311923v.3
STR430/16009
